Loading...
HomeMy WebLinkAbout2018-12-06 Hearing Transcript - Piilani Partners REZ 727 SMA 18-070 REVOKE SMA 334WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT DECEMBER 6, 2018 A regularly advertised hearing on the applications of PIILANI PARTNERS, LLC (AMEND REZ 727, SMA 18-070, REVOCATION OF SMA 334) was called to order at 9:36 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, Donald Ikeda, Thomas Raffipiy, John Replogle. ABSENT & EXCUSED: Donn Dela Cruz. ALSO PRESENT: Michael Yee (Planning Director), Daryn Arai (Deputy Planning Director) (from 11:04 a.m.), Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner) (from 11:04 a.m.), Christian Kay (Planner), Melissa Dacayanan (Planning Commission Support Technician) (to 10:58 a.m.), and Sarah Hata-Finley (Commission Secretary). And 4 members from the public in attendance. APPLICANT: PIILANI PARTNERS, LLC (AMEND REZ 727) Application for a 5 -year time extension to comply with Condition C (Secure Final Plan Approval) and Condition D (Complete Construction) of Change of Zone Ordinance No. 92 122, which reclassified approximately 2.5712 acres from Resort -Hotel -Safety -7,500 square feet (V -S- 7.5) district to the Limited Industrial- 20,000 square feet (ML -20) zoning district in 1992. 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. APPLICANT: PIILANI PARTNERS, LLC (SMA 18-000070) Application for a Special Management Area Use Permit to develop a potable water well and bottling facility with related improvements on a 2.5712 -acre parcel within the Special Management Area. The subject property is located at 525 Pi`ilani Street, at the northeastern corner of the Pi`ilani Street-Mililani Street intersection, Waiakea, South Hilo, Hawaii, TMK: (3) 2-2-033:011. APPLICANT: PIILANI PARTNERS, LLC (REVOKE SMA 334) Request to revoke Special Management Area Use Permit No. 334, which was granted in 1992 to allow the construction of a warehouse, fish processing plant, accessory office use, parking and related improvements on a 2.5712 -acre parcel within the Special Management Area. The subject property is located at 525 Pi`ilani Street, at the northeastern corner of the Pi`ilani Street-Mililani Street intersection, Waiakea, South Hilo, Hawaii, TMK: (3) 2-2-033:011. I0V1111.11 11 [Note: Item Nos. 4, 5, and 6 were consolidated into one hearing.] CLARKSON: The next business before the Commission today is actually three different applications from Pi`ilani Partners. We're going to review these applications or have Planning Department staff review them for us. We will be considering them in terms of our discussion and public testimony all at one time, but we will be acting on these individually. There are applications for an amendment to a rezone, a revocation of an SMA, and an SMA Permit application. At this time, Christian, please? KAY: Yes, thank you, Mr. Chair. If I can turn your attention to the screen. As you said, this is an amendment to Change of Zone Ordinance 92 122, revocation of SMA Permit 92-3 [334], and new Special Management Area Use Permit, SMA 18-70. The subject parcel is located in the South Hilo District of Hawaii Island in the Waiakea area. Specifically, the subject parcel here is outlined in red, and for reference, we've got Pi`ilani Street running generally east -west through the slide and Manono Street running generally north -south through the slide, and, this is the Wailoa State Park here to the left. The Applicant is requesting revocation of SMA Use Permit No. 334 which was granted in 1992 to allow the construction of a warehouse, fish processing plant, accessory office use, parking and related improvements on the subject parcel within the SMA. They are also requesting a 5 -year time extension to comply with Condition C, Final Plan Approval, and Condition D, complete construction, of Change of Zone Ordinance No. 92 122, which reclassified approximately 2.5712 acres from Resort -Hotel -Safety — 7,500 hundred square feet district to the Limited Industrial — 20,000 square feet district. Finally, they are requesting an SMA Use Permit to develop a potable water well and bottling facility with related improvements on approximately 31,000 -square feet portion of the subject property. The proposed project consists of the supply well, two 100,000 -gallon storage tanks less than 20 feet in height, a booster pump station, a 1,500 -square foot bottling plant/warehouse, and a 560 -square foot office building, both less than 20 feet in height, and associated parking and landscaping. Here are the reasons for the request. In terms of the revocation, the original applicant was Suisan Company, Ltd. who planned to develop this facility in conjunction with a planned fish auction site near the mouth of the Wailoa River. Due to Health Department and other environmental requirements, the planned use of the Suisan Fish Market auction site was terminated. This, along with the sluggish economy in the 1990's, caused Suisan to shift focus to improving its current location. As such, Suisan has decided to abandon the fish processing plant concept and part with the property. In terms of the rezone amendment, because they abandoned, Suisan abandoned the proposed fish processing project, they did not comply with several conditions of approval of the rezone ordinance. The Applicant is requesting a time extension to secure Plan Approval and complete construction to comply with conditions of rezoning for the new proposed project. EXHIBIT D 2 And, finally, for the SMA Permit, the new SMA Permit, in the early 1990's, the State of Hawaii conducted a drilling project in the area and found a fresh artesian water source at a depth of approximately 1,000 feet. The Applicant hopes to harvest this potential resource at an initial draw of a 100,000 gallons per day, and based on market demand, increase to 200,000 gallons per day. The bottled beverages would be produced and stored on site and distributed to various local and non -local markets. Again, we got the subject parcel outlined here in red with Pi`ilani Street running generally east - west through the slide, and Manono Street north -south. Zoning for the subject parcel is Limited Industrial — 20,000 square feet. Zoning to the south is General Commercial, and zoning on either side of the subject parcel is Resort, and there is some Open zoning situated with the park and also to the east of the subject parcel as indicated in green. The State Land Use designation for the subject parcel and much of the surrounding area is Urban as indicated in the red color. There is some Conservation as well indicated in blue, and that's in conjunction with the Wailoa Pond. The General Plan Land Use Pattern Allocation Guide Map designates the subject parcel as Industrial as indicated in the gray color. Much of the surrounding area is in Medium Density Urban, and there is some Open LUPAG designations and Conservation as well. The subject parcel is located entirely within the SMA boundaries as indicated in the thatched red color. Here is an aerial photograph of the subject parcel and the surrounding area. Again, you've got Manono Street running generally north -south through the slide, and the County's park complex here to the east. To the west is the Wailoa State Park and Wailoa Pond. Then, you've got Manono Mini Mart and Freddy's Restaurant here to the south. Pi`ilani Street is where they'll be gathering access off of. Currently, the subject parcel is vacant and overgrown with vegetation. Here are the Applicant's site plans. On the left-hand side, it shows the entirety of the parcel with Pi`ilani Street running generally north -south through the slide. Manono Street is in this area, and this is a proposed extension to Mililani Street running east -west through the slide. You'll see this is just a small portion of the subject parcel being used for the proposed use. On the right- hand side is the same but blown up a little bit showing the access from Pi`ilani Street, proposed landscaping, parking, the storage tanks, the warehouse area, and the warehouse, and then the office. Here are elevations showing the exterior of the warehouse and also the exterior office elevations on the lower portion of the image. And, here are some views of the property from the existing Mililani Street, upper left hand side, again, this is across Pi`ilani Street showing the subject parcel as overgrown. Here's a view of the property across Pi`ilani Street, again, a little bit closer, showing the subject property. And, here's a view of Mililani Street from across Pi`ilani Street, and the reason that we show this is as part of the original feedback on the application, there was a complaint from Dr. Camblor, and he's located in this location with the subject parcel being across Pi`ilani Street here. So, I just wanted to show proximity to his office relative to the proposed project. EXHIBIT D 3 And, here's a view of Pi`ilani Street looking east toward Manono with the subject property on the left-hand side, and a view looking west toward Wailoa State Park with the subject property on the right. The Planning Director is recommending for the Change of Zone that a favorable recommendation be sent to the County [Council] with conditions; for the new SMA permit, approval of the SMA permit with conditions; and in terms of the revocation, the Director is recommending approval of the revocation. With that, that's my presentation. I'd be happy to answer any questions the Commission may have. Actually, let me step back. Moving forward, part of the discussion as I understand will be on the question of legality of the Commission to impose fees for withdrawal of the resource, and then we'll go ahead and take action on each individual application with the SMA revocation first, the new SMA permit second, and the rezone last. With that, I'd be happy to answer any questions that the Commission may have. CLARKSON: Just as a favor to me, please, could you review the conditions of the new SMA Use Permit as far as KAY: —Okay, would you like me to read them all? CLARKSON: Well, summarize the import of them, please. KAY: Okay, sure. There is one that says the effective date of the SMA, the new SMA permit will be the effective date of the approved amendment to the Change of Zone. So, what that's saying is because the amendment to the Change of Zone needs final approval from the County Council, the SMA permit will not become effective until that is approved by the County Council. The Applicant will be required to comply with all of the conditions of that Change of Zone amendment. They'll need to get a Well Construction and Pump Installation Permit from the DLNR Water Resources Commission. They'll need to provide or obtain an NPDES permit, a National Pollutant Discharge Elimination System permit. They'll be required to comply with the requirements of the Safe—Department of Health, Safe Drinking Water Branch. They will be required to meet requirements of the Department of Health Food Safety Code for the bottling of the water. They'll be required to follow State Department of Health rules for construction and operation noise for industrial areas. Their hours of operation will be limited from 7 a.m. to 6 p.m., and they'll be no nighttime operation except for maintenance and security purposes, and they're not allowed to use any water from the County water system for bottling. So, they can't use, you know, water from the tap to bottle. They'll have to file an emergency preparedness and response plan with the Civil Defense Agency and the Planning Department, and they'll be required to comply with all other County, State, Federal laws, rules, regulations, and requirements. And, those are the conditions for the SMA permit. EXHIBIT D 4 CLARKSON: Thank you. So, the two that I wanted to zero in—one, you didn't mention. Limit on withdrawal, and the other was industrial noise, which is a considerably louder standard than Resort, and I can't remember what they are in decibels, but I know that an industrial can be quite loud. KAY: Seventy decibels. CLARKSON: Seventy decibels for industrial. KAY: Correct. CLARKSON: And, residential I believe is 55. KAY: Fifty-five, yeah. CLARKSON: Okay. Any further questions? REPLOGLE: I have a question. KAY: Yes. REPLOGLE: Could you tell me the elevation of the property from sea level? KAY: Yeah, give me a second. I may have that in my Background Report. One moment, please. And, Sid, if you happen to find that before me. You have it? What's the answer? FUKE (from audience): Fifteen feet above mean sea level. KAY: Fifteen feet about mean sea level. REPLOGLE: Thank you. KAY: Okay. CLARKSON: If there are no further questions of staff from the Commission, we'll ask the Applicant or their representative to please come forward. Mr. Fuke has already been sworn in, but would you please raise your right hand? [Mr. Fuke was sworn in during the previous application.] Do you swear or affirm to tell the truth on this matter before the Windward Planning Commission today? BUNN: I do. CLARKSON: Whichever of you speaks first, please introduce yourself again and speak into the microphone. EXHIBIT D 5 FUKE: Sure, again, good morning Mr. Chairman and Members of the Commission. My name is Sidney Fuke, and I'm the planning consultant assisting on this project. BUNN: Good morning, my name is Pam Bunn. I'm an attorney for Piilani, and I would like to thank the Commission, the Chair, the Vice -Chair, Director, counsel, and staff for the opportunity to be here and testify today. FUKE: So, first of all, I'd like to appreciate—extend my appreciation to the Members of the Commission for agreeing for the continuance of the November 7th meeting. I had a last-minute dental emergency, and actually I had an abyss and had to have it extracted so talking little bit funny today, so I'm sorry. But, at any rate, as the Commission, the Commissioners may recall at the August 13th meeting, based on the letter, the Commission continued the hearing essentially to have the counsel address two basic questions. One dealt with the issue of the Public Trust Doctrine, and the other one dealing with whether the Commission had the ability to impose some sort of fee, you know, per gallon or whatever have you. So, I believe that that has been asked and answered by your counsel, but we also at the same time had asked Ms. Bunn's firm to essentially evaluate the same questions, and, you know, she's going to be talking specifically to that issue. However, before going on to that, what I'd like to do is to kind of initially restate, you know, in the absence of the Applicant's consultant, Tom Nance, who couldn't make it this meeting, but he was, he could have made it like the last meeting, but I'm sorry. But, anyway, kind of like restate what is already on the record relative to the proposed volume of extraction and summarize their numerical impact on the aquifer itself, and that's kind of like in the handout that I passed out, you know, and then I'll defer to Ms. Bunn who, you know, will specifically discuss the project's impact relative to the Public Trust Doctrine and the ability of the Commission or any administrative agency to impose tax. Then, I'll kind of briefly try to touch upon some of the other issues that were brought up, you know, during the course of the hearings on this matter. So, specifically on the, you know, on the—if you look at the blue sheet again, what the Applicant proposes to do, and I guess, maybe, I hear what the Commission Chair was saying, you know, whether there was any limitation in terms of the volume, proposed volume of extraction as a condition, and actually the Applicant would have no objection to having such a condition that would limit the proposed extraction to no more than 200,000 gallons of water per day. Notwithstanding that according to the State Water, State Commission of Water Resource Management, again, if you look at the blue sheet, the Hilo Aquifer System which is technically the area where the site is located has a sustainable yield of 349 million gallons a day. The present and projected water use is 5 million gallons per day, and that leaves you a balance of 344 million gallons a day. The Applicant's use is only .20 million gallons per day which is less than .1 percent, and that leaves you a balance of 343.8 million gallons per day. So, that's a very, very substantial balance that would remain within the Hilo Aquifer System. However, as Mr. Nance had indicated at the last meeting, the early meetings on this, and in written testimony, the water actually would come from what is technically come from this Onomea Aquifer System. It goes, it penetrates below the Mauna Loa lava down into the Mauna Kea lava system, and so that's, it falls within the Onomea Aquifer System. So, if you use that as EXHIBIT D 6 the basis, the sustainable yield of that aquifer is 147 MGD. The projected use, actual and projected use is also 5 million gallons per day. The balance, that leaves you a balance of 142 million gallons per day, and then after the extraction, you have a balance of over 141.8 million gallons per day. So, that's rather sizeable. So, doctor, not doctor, but Mr. Nance then indicated that in response to some of the other questions that if you don't use this water then what happens, then the water just basically flows into the ocean and just goes into the marine environment. That'sI needed to put that forth on the record again, restate that largely because this relates to the Public Trust Doctrine, and so, in that regards then, I'll turn it over to Ms. Bunn. BUNN: Thank you. I'll be brief unless the Commission has questions. The Public Trust Doctrine in Hawaii is mandated by the Hawaii Constitution; specifically Article 11, Sections 1 and 7. It imposes obligations not only on the State but on subdivisions such as counties which is why it's commendable that you all recognize that it is implicated here and it's something that needs to be discussed. In fact, the County itself has adopted a form of the Public Trust Doctrine in the County Charter. It is Section 13-29, and it's broader than the Hawaii Constitutional Public Trust in that it protects more resources. It says that for the benefit of present and future generations, the county shall conserve and protect Hawai`i's natural beauty and all natural and cultural resources including but not limited to land, water, air, minerals, energy sources, wahi paha, surf sites, historic sites, and historic structures, and shall promote the development and utilization of these resources in a manner consistent with their conservation and furtherance of the self-sufficiency of the county. So, that's the county's iteration of the Public Trust Doctrine which the Hawaii Supreme Court has described as a dual mandate. There are two parts to the Public Trust Doctrine. It includes both the authority and the duty to maintain the purity and flow of water for future generations and the duty to assure that the waters of the State are put to reasonable beneficial uses. So, the Court in the Waiahole case summarized it by calling the Public Trust Doctrine a dual mandate of "1) protection and 2) maximum reasonable and beneficial use." And, that's a quote from the Hawai'i Supreme Court. The State Water Code was adopted after these amendments to the Hawaii Constitution and is coextensive but not entirely dependent on the Public Trust Doctrine. But, in the statement of policy in the State Water Code, and its Section 174C-2, it specifically recognizes that the Code needs to be liberally construed in order to obtain maximum reasonable beneficial use for purposes such as, and it lists a number of purposes, including commercial and industrial use. So, neither the Public Trust Doctrine nor the State Water Code prohibit use of water for commercial and/or industrial uses. They do impose a test, though. I mean, the water has to be put to reasonable beneficial use, and this is where the numbers that Mr. Fuke and Mr.Mr. Fuke presented and Mr. Nance has testified to before, because the Hawaii Supreme Court in a more recent case, a 2014 case called Kauai Springs described how you determine reasonable beneficial use and said that it requires an examination of the proposed use in relation to other public and private uses. And, so what the Commission would need to look at would be Piilani Partners proposed use of water from this source, the Onomea Aquifer System, in juxtaposition to other uses of that water, other public and private uses. EXHIBIT D 7 Now, as I believe Mr. Nance testified, but may also be obvious, this is a very deep aquifer. Right now, the projected current—and I don't believe there's any current use of it—the projected future use of it is 5 million gallons per day. That's out of a sustainable yield of a 147 million gallons per day. So .2 percent. There are really no competing uses for this water because it is enough to accommodate the present and future uses as well as Piilani Partners' proposed use. I also wanted to point out a sort of odd thing about our State Water Code which is unique I believe in the United States, which is that it is a bifurcated water code, and that means that water comes under regulation from the Water Commission only once an aquifer has been designated as a water management area. So—and, you folks in Kona, I think, just recently had a big fight over designating the aquifers there. Oahu is entirely designated. Maui is partially designated. Molokai is entirely designated. But, the significance of designation is that the Water Commission doesn't regulate withdrawals of water in an undesignated aquifer. In an undesignated aquifer, it is the common law that controls, and the common law with respect to groundwater is that overlying owners have a right to withdraw water underlying from aquifers underlying their land in reasonable amounts to the extent it doesn't interfere with any other overlying owners' ability to use the same. It's called the Correlative Rights Doctrine. And, so in the absence of designation, that's the common law doctrine that controls the withdrawal of groundwater. Here Piilani Partners is looking to withdraw a small amount from the aquifer underlying its property. There's, from what we can tell, no competing uses. The sustainable yield—and the sustainable yield is the amount that can be withdrawn from an aquifer without causing harm to the aquifer. It's well in excess of anything that's currently being used or projected to be used. I wanted to touch a little bit—unless there's questions about the Public Trust DoctrineI wanted to move onto the notion of payment of royalties for the water. RAFFIPIY: Ma'am, I do have a question. BUNN: Yes. RAFFIPIY: You said the common law is applied when there is, the water is not designated? I:i�1►1►i1•Y� RAFFIPIY: So, therefore, the private owner can withdraw at his own will what, you know, within the limit. BUNN: Yes, and of course the Public Trust Doctrine still overrides all that, but we would need, for example a water permit from, from the Water Commission. RAFFIPIY: So, if it was already designated as aI don't know if it's designated, if that's the right word, but if it was Mauna Kea Aquifer, is that already designated? 10,14 111 1.118 11 BUNN: It is not. RAFFIPIY: It is not designated. BUNN: That's correct. RAFFIPIY: What about Mauna Loa? BUNN: Not designated. RAFFIPIY: It is not designated. What about this Onomea? HALL: Nothing on this island is designated. RAFFIPIY: Nothing on this island is designated? BUNN: This island is entirely under the common law. RAFFIPIY: I see. Thank you. BUNN: Now, we will still need—that's for withdrawals of water—we will still obviously need a well permit from, from the Commission on Water Resource Management. RAFFIPIY: Got it. BUNN: But not a Use Permit. RAFFIPIY: Thank you. Earlier you said something about to be liberally construed in your presentation. What was that that we need to, that has to be liberally construed? BUNN: It's the Water Code. So, the policy of the Water Code is basically to implement the Public Trust Doctrine, and so the Water Code says to the Commission when you're construing this Code, you construe it liberally to make sure that reasonable beneficial use is allowed for these other purposes provided that public trust purposes are accommodated. RAFFIPIY: Thank you. BUNN: Thank you. CLARKSON: I have a question about reasonable beneficial. BUNN: Yes, Mr. Chair. CLARKSON: Can you explain how the export of bottled water from the island would benefit the State of Hawaii? In other words, what benefit, what is the beneficial aspect of exporting water from here other than to the pocketbooks of the owners of the property? EXHIBIT D 9 BUNN: Sure. I think first we need to look at the Hawaii Supreme Court's definition which is does it interfere with any other use? And, no, it doesn't. But, then there is the economic component that I think Mr. Fuke wanted to address. There is employment. There is tax revenue to the State, some of which goes to the County, and it's not detrimental. FUKE: So, it's any other, sorry. [Mr. Fuke turned the microphone on.] It's any other, it would be like any other, for example, like agricultural product. Whatever you export. Whether it's beef or soy products, lettuce, or whatever have you, it's a form of—if you have an export, then it means like new revenues coming into the island. The only, you know, like major source of new revenues coming in here from a non-agricultural perspective is really like the visitor industry. New monies coming in circulating. So, that's the economic benefit. CLARKSON: Thank you. Please proceed to the issue of the royalties then. BUNN: I will do that. I have to say, I did quite a bit of research here. I did not find any direct prohibition on collecting royalties, but that's telling in itself, because in order for a county to levy a tax, it needs direct authority. It needs expressed authority to do so. And, I also did not find that. There is nothing. I started with the specific and I went to the more general. Under the Hawaii Water Code, even the Water Commission does not have authority to impose any type of royalty for use of State water. So, the Water Commission doesn't have that authority. I didn't find anything in the County Charter that would give the Commission that authority. I didn't find anything in the Constitution. I didn't find anything in Chapter 46 of the H.R.S. I really just found no authority to do it. Certainly, the Public Trust Doctrine, and I don't know the extent to which there was a link made between those, but the Public Trust Doctrine doesn't provide that authority. So, sum total, I didn't find an expressed prohibition, but I didn't find expressed authority either, and for a county to tax, it does require authority. I think Mr. Fuke, maybe, raised some issues in one of his letters. I don't know if that was distributed, but there are issues. You know, first it should be authorized by the State. Second, it kind of raises an interesting eco -protection problem. It would mean that if you happen to be in a Special Management Area and had to go through the Commission, you would have to pay some royalty, but if you weren't in a Special Management Area, you wouldn't. I'm not quite sure that wouldn't be an issue. So, I wish I had something firm and definitive to tell you, but I can only tell you that I didn't find any expressed authority for such a tax. CLARKSON: Any further questions? REPLOGLE: Yes. I would like to sort of make a statement on the royalties. It wasI brought that up about the ecosystem services fee. That's what that would be, and I fully realize at this point in time there's no law or legislation mandating that these things happen. I was sort of throwing it out there that maybe Piilani Partners would just do that because it's the right thing to do, but that's all that was, and I appreciate all your research. I'm sorry, but I knew. Thank you. EXHIBIT D 10 FUKE: Quite honestly, you know, Commissioner Replogle, I don't think you need to apologize because I think it forced all of us to kind of like reassess the situation and then maybe it can serve as a vehicle or as [inaudible] for legislative bodies, you know, to perhaps consider that. And, so if it's generically considered, you know, say hypothetically like the Legislature, the State Legislature passes a law that requires some sort of like a fee, and the authority that's required to impose this fee would rest with a State agency like the State Commission on Water Resources. Then, you know, you capture all of these entities that are going to be drilling wells, and that's going to extract it and export it, you know, those kind of things, so, but I think it's a good food for thought, and so that's my point of view. The other thing that I just kind of wanted to share is that there were kind of like other tangential issues raised, you know, during the course of the public testimony and written testimony. One, you know, related to you know the quality of the water due to the proximity of former, like the Canec plant, potential arsenic, so on and so forth, so, you know, obviously the Applicant was rather concerned about that, so the first thing it did before even making an application or, you know, making some commitment to the landowner was to say we're going to have to conduct a phase one environmental study, you know, just to make sure that are we okay. And, then that study was done, and the conclusion was that you're all right. Then, also we had consulted, the Applicant had consulted with Tom Nance Water Engineering, the hydrologist, basically to make sure is it okay, and then his conclusion is that yes, it's okay. Over and beyond that, there is also like this regulatory requirement that before you can actually make that water available for consumption, you need, and especially for commercial consumption, you need to have the State Department of Health's approval. They have to issue what is called a safe water and drinking permit. And, lastly, and I think kind of critically, is that if you're the developer, you would never develop a water well and, you know, and sell it knowing that there is a potential for an environmental or health risk. You know, you think about all the liabilities you have. You know, so this, I just wanted to kind of make that point. The other thing is like the use of plastics. I mean like, he has no, the Applicant has no control over that. It's just like saying that, you know, it's—the project is not a plastic manufacturing plant. It has a product that is going to utilize plastic. It's no different than any other supermarket or like a meat packing company that you're gonna pack meats and you're going to use plastics. You know, it's the same way. You have a product and you're going to use plastics. But, nevertheless, you know, just like on the issue of royalty, it forced the Applicant and us to kind of like look into that matter further and then we, you know, stumbled across this article that was, you know, came out in one of the Japan news saying that there are companies in Europe right now that's trying to manufacture and get certified this biodegradable plastics. And, so if it comes to being in the year 2020, then obviously, you know, you would hope like nationally that becomes not necessarily a trend but a mandate for all, you know, bottling companies or companies that utilize plastics for holding beverage, you know, to assume that posture. So, I think that it's very healthy. It's very healthy, you know, all this kind of discussion. As much as we would have wanted to have like a decision way back when, but the questions raised I EXHIBIT D 11 think were very germane and forced everybody else to kind of reassess the situation, so I think it's very good. CLARKSON: Any further questions? RAFFIPIY: I have a question. Thank you for—thank you, Mr. Fuke, for bringing up that testimony from, it was Mr. Nance, yeah? You know, I have a simple mind. I always wanted to understand, you know, this—to me, it's a little bit above my head, but talking about Mauna Loa Aquifer, Mauna Kea Aquifer being on the bottom, we get this Onomea Aquifer. How are they related as far as, I know that there is that, Mr. Nance talking about this, but there's about 100 feet of impermeable FUKE: —The lava RAFFIPIY: Yeah, between Mauna Loa and Mauna Kea. So how are they related to Mauna Loa and Mauna Kea? Are they—`cause I went back and read that Thomas, the abstract from Thomas, report, and he said there was an interface. So, there's a Mauna Loa on top, Mauna Kea on the bottom, so there's an interface, so what I believe it is, is that they're like this, so we're going to be drilling through, possibly drilling through Mauna Loa and going down to Mauna Kea to extract water from Mauna Kea, right? FUKE: Exactly. RAFFIPIY: Okay. So, if we're going to go through that Mauna Loa and go down to Mauna Kea, is there any possibilities that the water from the upper aquifer will be going down into the lower aquifer? FUKE: You know, I could not say with absolute uncertainty like it's not going to happen but then the whole, the water well permit requires it to be cased. You know, when it's cased, then the theory is that it will not penetrate and, you know, you would not have this mixture. RAFFIPIY: That is providing that everything is smooth and the part coming in at a smooth— FUKE: —Yeah, initially what happens is that you have to have your first drilling, and that's your exploratory drilling. That then, you know, penetrates both the lava flows, you know, Mauna Loa and Mauna Kea, and then, based on, you know, that's like about aaccording to Mr. Nance, and that's already provided in the written report, but it's like at a depth of about a thousand or thousand fifty feet, yeah? RAFFIPIY: Correct. FUKE: And, so based on that initial well, then they'll determine like two things. One, the quality of the water, whether it's actually really good or not and safe to drink, and secondly, the quantity. And, so, and the reference to like the artesian is that if you have like so much water, you know, in that area, the pressure you know then that's like the artesian, then really, it minimizes your pumping cost because you have enough pressure. Just like the oil, it kind of EXHIBIT D 12 gushes out. Others you may have to use pump, you know, to kind of haul the water out. So, if that first test proves to be successful, then you go ahead and implement. You do the appropriate casing so on and so forth. All of this would have to be done, you know, through standards and approval of the State Commission on Water Resource. They issue the well permits for that. So, the short answer to your question is that in theory, there is not supposed to be this interaction between one level of water with the second level of water. RAFFIPIY: Okay, so, so once you, you drill or you damage that aquicludes, which is that impermeable, you know, the separation between the two aquifers, and with that, with that pressure that we're just talking about, wouldn't that be, you know, that the damage or the FUKE: —The impression would be like through like a large, a casing, a pump. RAFFIPIY: Pipe, correct. FUKE: You know, so like, I don't know what the diameter might be, but hypothetically, maybe a two -foot diameter, a 24 -inch diameter, and so all of the water would be coming out from that area. And, so this relates—you know, that's why Dr. Nance, no, not doctor, but, Mr. Nance is saying that there may be a need for like a one storage tank and at the most a second storage tank, you know, on the surface. Because if you have enough artesian pressure, then that minimizes the need for storage. RAFFIPIY: Okay, and the outside, the outside of the pipe now that we tampered with that aquiclude, the outside of the pipe, it wouldn't—it wouldn't become, you know, susceptible to water shooting up through that into the upper aquifer? FUKE: No, because it would be very—it would, you know, you're so called, your straw would go through the first level and then go down to the second level, so all of the water is coming out through the straw from the second level. RAFFIPIY: Okay, where is Onomea Aquifer related to this Mauna Kea and Mauna Loa? FUKE: Actually, from I understand anyway, you know, the older mountain is really like Mauna Kea, and so, you know, you probably had the water and then the Mauna Loa, you know, Mauna Kea, you had all the lava activity and then so the water is trapped below Mauna Kea. The Mauna Loa is a little bit younger, so then, you know, you had a second set of lava activity over there, and that's a little bit higher, and so below Mauna Loa, you also had some water, and then below that, of course, is like the Mauna Kea. So, where exactly—according to, I don't know exactly where the line is, but I think there is like a kind of overlap between the Mauna Loa and the Mauna Kea lava flows. RAFFIPIY: Okay, so we don't know where the Onomea Aquifer in relation to Mauna Kea and Mauna Loa? EXHIBIT D 13 FUKE: Well, according to Mr. Nance and the State Water Commission, the water would be technically actually coming from the Onomea Aquifer, you know, just because of its depth, because of its depth. But, the Mauna Loa Aquifer if its less deeper, it so-called falls in the Hilo Aquifer. RAFFIPIY: Thank you. CLARKSON: I just have a quick question about that. Since you have to go a thousand feet to get the Onomea Aquifer, and I'm just speculating, but I can't imagine that there's any difference in water quality between the water in the Mauna Loa Aquifer and the Onomea Aquifer. Why not just go down, you know, 30 or 40 feet? There's plenty of water very, very close to the surface. FUKE: I guess that would be like similar to why people want to export the water from Keahole Airport, I mean, off of the Keahole Coast. You know, `cause it's perhaps like has different mineral content, nutritional value, whatever, you know, as opposed to just the conventional water. I mean, like I guess people look for like unique type of water, you know, as long as they are potable. So, I CLARKSON: I understand. AGUINALDO: I have a question. I've worked on UH water well, so I'm familiar with water, you know, opposed, you know, a lot of people because University of Hawaii at Hilo built this water well, and a massive water well, so I'm familiar with water, extracting water. So, as what, my question is, is how big of a well, well pump, a water well pump are you guys planning to use? So, the diameters you guys talked about, I know all of that. I know every step of the way for quality, water control, water testing, a lot of that stuff So, I'm assuming you folks will have an equipment that will have a portion of chlorine that will be extracted into the water for be able to be drinking water. So, I just wanna know because what kind of facility is this going to be? `Cause we're talking about, you know, a lot of, you know thousands of gallons of water that will be extracted, so to, you know, be able to process that water, it goes through this unique system that it injects so much, you know, chlorine into our water to be able to be drinking water. So, what it was, was that water well that I worked on, pumps that water up to a big storage, big water tank. So, is it the same thing, or is this something different? I know residential in certain areas drill their own. They have to have a water permit, you know, all this permit using that to, you know, instead of a catchment system. So, are we talking about the same kind of concept or this is a total different concept? FUKE: For this water well according to the Applicant to be successful, it has to be natural. You cannot introduce products like chlorine, you know, like in Hilo and like even like in Waimea when, you know when at that timein years of old used to have like the open reservoir system, and so the water wasn't that really, you know, so good, so they then kind of put fluoride or like chlorine. In this situation here, it defeats the purpose of having a natural water well. So, the answer to your first question is that no, it's supposed to be natural. So, if they're gonna have to introduce, then the Applicant would abort the project. AGUINALDO: Okay. EXHIBIT D 14 FUKE: And, as far as like the storage tank, the storage, you know, normally, the storage tank that what you're referring to is that if you have like a residential development and then you want to have, the idea is to have your storage tank at least about a hundred foot elevation higher than, you know, than what you're serving, and you pump the water up, and then you let gravity flow. Like in this situation over here, it's not that situation because the water is just being extracted and put on, on the site, in the holding tank on the site. It doesn't have to be elevated `cause from this holding tank, it will just go straight into the bottling plant. There is this water well permit they have already applied for, and I stand corrected. It just said that their, you know, the so-called the straw, it's not 24 inch, but it is 12 inch. AGUINALDO: Okay. FUKE: Yeah, the diameter. AGUINALDO: And, my other question is as far as I know you have your due diligence as far as, you know, the protocols, the steps, measures you guys take. Who is going to be doing the test of the water quality as it being, you know, I'd like to say bottled. You know, I know you guys want to do biodegradable. There's also glass, you know, where they hold the water `cause a lot of people talk about, you know, trash. You know, plastics. So, I wanna know who will monitor. Is it Department of Health or a water agency that monitors what is being, you know, bottled as, you know, quality control? FUKE: Yeah, the water has to be I believe like annual, you know, annually tested, and that sample water is given to either a state or like a national companies that would evaluate the quality of water, you know, periodically. It would be no different than like Hawaiian Springs out in Kea`au for example. You know, you have a—it's a private water bottling company over there. And, Department of Health here also is required by the State to submit its water quality test. That's why they, you know, at the Department of Health, excuse me, Department of Water Supply, they have their own chemist to water quality evaluation. I doubt very much like in this situation they would have their own chemist on board, but nevertheless, they would have to submit their water, whether it's on an annual or, you know, at certain fixed point, to both the state and the national government for, to attest the quality of the water. Again, more critically, it's like, if you're the water company and there is a potential for it to be tainted and you look at all of your legal exposure, you would want to be super cautious about the water that you are selling, you know, to the consumer. AGUINALDO: Yeah, also Commissioner Replogle, I know you guys were talking about royalties. I just think the Aloha Spirit, whatever, you know, especially in the Hawaiian culture, there's no mandate that like what, you know, attorney said, what would be really, really good is if there was a way that, you know, there's some proceeds goes to a Hawaiian non-profit. That would be really good. Somebody gotta do `em. I hate to say if you guys the first, that would be really good, because whoever does, you know, they gotta follow you folks' footstep. It's like something you take, you give back. And, I just think it's a small fraction, a contribution that if it, EXHIBIT D 15 money, that is set aside goes to a Hawaiian non-profit, that is legitimate, that serves the Hawaiian culture, the Hawaiian people, that serves them well, that would be something that I truly feel would be really good. It's like you taking something from me, but you give `em back. It's almost like a barter, trade-off, yeah? But, if it benefits the Hawaiian community educational wise whatever it is, that is something that is very nice, would be nice to see. It's not like oh, you gotta always, you know, like you said, being fees you gotta be paying. But, it's that something you generate, you set aside, and it goes to an establishment. I just think it's a win-win that way. You know, then theI'd like to say is that we grew up in this culture, that we'd like to preserve that culture. Not having someone come in, change our culture, what we have always lived the way, but if there's a slight change, it's just like, you know, it's like a trade-off I think that would be—it's just my suggestion that you, as a business, you do that on the side, and you continue to do that. It benefits for the newer, younger generation, and you folks would be setting a prime example for others to follow. That's just my suggestion on that. FUKE: I think it's a point well taken. It's something obviously like, you know, like because we can't make that commitment right now, but I would think that in light of what Ms. Bunn has noted about whether the Commission has the legal authority on the SMA portion, you know, to make any such an imposition, but perhaps if it comes at the legislative level, you know, not necessarily only at the State Legislature, but say at the County Council, then maybe that could be entertained because that's a legislative body. So, I'd like to kind of like offer this suggestion, you know, I guess to the Commission, is that, you know, we have like there's basically like three requests. You know, one request is to terminate the existing SMA Permit for the project which is, you know, obsolete, and so that's more a very perfunctory task. The other one is to seek like a time extension on the zone change, and what I'd like toand the third, of course, is like for this permit—but what I'd like to suggest if the Commission is so willing is that if they can favorably consider all of that and then in conjunction with the rezoning time extension, then we can work together with the administration in crafting a language, because in crafting a language that would someone kind of somewhat address, you know, that particular issue. I can't come up with the specific language right now for that because we still need to confer with our client, but if we have some time, you know, between, you know, if you recommend favorably on the time extension, for example, when it hits the County Council level in about, you know, six weeks from now, you know, we can work something, some language out with the administration and the Director can then share with the Commissioners at the appropriate time what was ultimately decided upon by the Council relative to this particular issue. AGUINALDO: Right. I just think that, you know, it's not our body as a business, you know, partnership, is between you folks and your client. It's for us if, you know, an extension is granted. Would that extension as you folks clients, it should be dealt with them. It's like what I'm saying is again what I take from you, I willing to do this to benefit, you know, just our culture, yeah? Because the assumption is people only take, take, take, take, but they no give back, and what I've learned from that is that what, you know—you know, you want everybody to be, you know, like to, you know, agree upon, but again, that's one small token that, it's something small, but it's something that, you know, the Council or us shouldn't be voting or EXHIBIT D 16 have that go through. It's just within your client as you folks discuss that, then you guys present this on the table that we willing to do this. Not approval from us, but we just—it's just a suggestion that, you know, it's something to think about. FUKE: I'll kind of like share this much with you. You know, and this kind of partially answers I guess Commissioner Raffipiy's questions about like or maybe someone's question of like, why don't you stop at Mauna Loa Aquifer rather than going down to Mauna Kea and the reason being is that the Applicant is very spiritual, and he believes that having the water from the Mauna Kea system is spiritually so much more unique than the Mauna Loa water and, you know, he has a lot of reverence for Mauna Kea, and so this is his feeling, and I believe like between Ms. Bunn and myself and then given some time, we can probably come up with some language in conjunction with the rezoning time extension to come up with something reasonable because if you, if he does it only on, he or the Applicant does it only on this and the property is then sold, you know, to another entity or developer, another entity, that goodwill may not necessarily cover, follow, but if it's legislatively made as a condition, then you know that that goodwill becomes mandatory. So, all the same, we just a little bit time to do that. RAFFIPIY: I have one question. Follow-up on Mr. Ikeda's question back in August. I'm not sure if it was really answered satisfactorily. I don't know if he was satisfied with the answer, but the way I read his question about tsunami, if—we all know that's in a tsunami zone. Let's say we get a tsunami come in. What is, what is the possibility, what is your remedy to shut that pipe down permanently or somehow that when tsunami coming, it's not going to get inside that pipe and contaminate the water. FUKE: My understanding is that the system would have to be developed where you would have to have that cap, and then fortunately unless if it's like a locally generated tsunami, you know, where you have only like five or ten minutes response time, you know, maybe that would be more difficult to achieve, but if you have enough warning, then the ability to cap the well is always there. And, so, you know, your staff's proposed condition KAY (from staff table): Eleven. FUKE: Eleven? Oh, file an emergency preparedness plan. That would have to be approved by the Planning Director. That would be a component of that plan. RAFFIPIY: Okay, thank you. CLARKSON: So, I just want to ask the people sitting on either side of me if we can't mandate some kind of royalty through the SMA process, we could make it a recommendation on our referral to the County Council for the rezone that they consider more active measures of protecting the public resource then what we're allowed to do through the SMA Permit. Because it, you know, protection often times involves a spending of money, and since the money's got to come from somewhere, logically you want to have the money come from the people whose asset you're protecting rather than just from general taxpayer funds. So, can we include that as part of the rezone? Not a condition of the rezone, but basically the County Council is going to approve it. Just recommend that they consider this as part of our referral? EXHIBIT D 17 YEE: I can certainly provide a transmittal to the Council that would state that. FUKE: And between that and when it reaches, ultimately reaches the Council, hopefully, it will have some language prepared, you know, with the Director along those lines subject to, of course, the Applicant's position. CLARKSON: And I just want to reiterate. I was kind of stunned when the lava flow erupted, and Puna Geothermal had to basically plug their wells and protect them from the lava, and they had to fly in the equipment to do that, and wondering why in the heck haven't those always been on-site from day one. That whatever protection from tsunami is required, I mean, should be really well thought out in advance. I mean really robust isolation valves or like you said a blind flange to cap the well. Any further questions, Commissioners? If not, thank you. We have two people who have asked to testify today before the Commission. I'll ask Cory Harden and Kamaki Rathburn to please come up when you have the opportunity. Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Windward Planning Commission today? RATHBURN: Yes. HARDEN: [Nodded yes.] CLARKSON: Okay. Flip a coin. HARDEN: Good morning. Thanks for your volunteer work on the Commission. And, Cory Harden for Sierra Club Moku Loa group. I hope you folks will oppose this project. I am glad to hear some discussion on royalties, on the way things are now, it's kind of like a free ride for Piilani Partners. I figured out that they may generate half a million plastic bottles per year, and that's a really low estimate estimating the low withdrawal of 100,000 gallons of water a day, and even if they only put one percent of that into the small, single -use bottles. But, in Mr. Fuke's letter about the plastic waste, they talk about irresponsible consumer practices or behavior and they talk about taxpayers paying for recycling and there's some vague promises about recycling education and maybe biodegradable plastic in the future. You know, it's—you folks may have heard of extended producer responsibility. If you put something out in the environment, you can't wash your hands of it. You're responsible. And, we've talked about the aquifer which it only exists because a lot of taxpayer dollars, volunteer effort gone to protect the watershed. And. I'm glad there's some discussion of some royalties going into help protect that aquifer. And, also I still have some concerns from earlier meetings. In November, I haven't heard this addressed. I hope Mr. Fuke might address it. Possible contamination of the aquifer by salt water, when the well is drilled because I've attached again Don Thomas's report, and he talks about difficulty getting samples without getting them contaminated from deep saline fluids. So, we want to be really careful there's not contamination from salt water. EXHIBIT D 18 Let's see, there's State Office of Planning recommended review by Water Commission and also if Piilani Partners takes 200,000 gallons of water a day and selling, that's not going into the ocean. What happens to the ocean environment when it suddenly changes without the fresh water? In August, I talked about a professional written report. I haven't seen one regarding how much water will be harvested in impacts. I have seen Mr. Fuke quoting informal reports from Tom Nance. Haven't seen anything written. And, I'm glad to hear some discussion of the tsunami zone. I am a little concerned about if there is a local generated tsunami and there's not time to cap the well. How is that gonna play out? And, the environmental impacts in addition to plastic pollution, most of the wastewater from production is contaminated, and it can't be reused, and if you're using reverse osmosis, that's like four gallons of water to get one finished bottle of water. We've also talked about water becoming privatized worldwide. And, I would like to hear some more about the noise impacts to this peaceful Wailoa Park area. And, let's see, I appreciate Mr. Clark's [sic] question about the beneficial use. I mean, how is it beneficial to basically use this water resource to create a million bottles of plastic waste. So, thank you. CLARKSON: Please go ahead. We'll have any questions for either of you after you've both finished. RATHBURN: I'm going to read from here. Is that okay? CLARKSON: But, please use the microphone as you do. RATHBURN: Aloha. Aloha, everyone. Sorry, good morning. My name is Thomas Kamaki Rathburn. I represent myself today. I have prepared a written email, a written statement that I actually emailed to you folks I think yesterday, but I'm going to go ahead and read it. It was created in September, so if there are any inaccuracies in here or anything that I may have stated that is not correct, I'll just say that I'm telling the truth in just reading what I wrote. It's not I'm trying to, intending to mislead anybody. So, thank you for your time. Thank you for all your work that you guys are doing. We appreciate that very much. So, aloha mai kakou. As Hawaiians, we have always been open and generous people. We are known in every corner of the world for a priceless resource, the Aloha Spirit. We have shared all that we have even when much of it, much of that has been stolen, abused, neglected, and sadly desecrated. We continue to share in spite of those who would ignore our feelings. Many stand and watch the destruction of our Islands' precious sacred sites, our land, resources, and tragically, our culture. Here, many revel in Hawaiian practices, in our art and culture and language, even taking Hawaiian names for themselves and others. Yet, when there is a call to action to defend or protect all that is Hawaiian and all that we are as a people, all that we are blessed with here, aloha `Hina, and our connection to the creation, too many fail to answer. EXHIBIT D 19 We have shared our aloha because we feel we are all `ohana really. Now the world is in trouble. The earth is under stress. Its systems are under siege. In essence, man has waged war against nature and the outcome is looking more and more grim. One of the most important problems facing many is access to good clean healthy water. Ask our cousins in Michigan, in California, in Cape Town, South Africa. Just to name only three. The sequestering, controlling and marketing of water is an abomination and the greatest crime one could commit. To put a price on a drop of water is wrong. To deny living beings their own clean waters to deliver elsewhere to profit, for profit is beyond sinful. Water is not a commodity to be traded or sold or manipulated for market value or for political control. Water is priceless. I hope you will join us Hawaiians and Hawaiians at heart in protecting our water for what it is worth—life. Mahalo for taking the time to listen to this. Hawaiian water, a priceless resource. Let's see, hmm. Two foreigners, Johnny Cheung Ching Fu, I hope I pronounced it correctly, and Keizo Horikita, who represent who knows? I don't know. Themselves? Nestles? An investment group, maybe? I don't know. Anyway, of course, they want to drill through the arsenic -drenched contaminated, pardon me but doodoo water soaked ground, of the area that they are talking about, to tap one of Hilo's most pristine freshwater aquifers. They plan to set up a well and to build a plant and botting operation. They will ship in plastic preforms to blow into over 400 million bottles per year. Not all the bottles will be filled. There will be lots of rejects in the bottle production and in the final product as well. So, plastic waste and water waste will be inevitable. There will be heated plastic fumes produced when the processing of the preforms into bottles. The whole plant will also be very, very noisy. So that it will be taking place right there between the Civic center, the marina, Wailoa ponds, the State park, and Freddie's Restaurant, and also the Hilo Hooganji Buddhist Mission. Then they plan to fill the bottles with pristine Hawaiian water, inject ozone gas into each bottle, then cap them with about 400 million plastic screw caps. The ozone, in each bottle, will be released gradually within a day or so through the plastic and dispersed into the air and atmosphere. Mechanical labelling might be done with glue and paper with plastic sleeves or sheets or embossed as well as encoded with the HI -5 imprints via laser. There will be pallets and plastic wrapping machines, forklifts with propane fumes and exhaust, shipping containers coming and going, large trucks hauling and moving them around the property, not to mention the leaking of fuels and oils, as well as to and from the harbor. This would add more truck traffic to the already overburdened Manono Street, Kamehameha Avenue, Kalanianaole Avenue, Kanoelehua Avenue, and the Banyan Drive/Kanoelehua Avenue/Kamehameha Avenue intersection, Ken's Pancakes in other words. The 20 -foot and 40 -foot shipping containers will be loaded onto barges, shipped to Oahu, and beyond to Asia and elsewhere, mostly, but certainly all over the world including North America and Europe. Over 400 million, 16.9 -ounce plastic bottles and caps full of Hilo's water every year. Year after year after year as long as they have permission to suck it out. This is going all over the world, people. In third world countries, they are prancing in with money, gifts, and promises paying off corrupt government officials and leaders for exclusive rights to their water. Wealthy consortiums are purchasing or acquiring watersheds globally as EXHIBIT D 20 non -profits groups, non-profit groups under the guise of conservation locking out natives and locals from their own water resources. Looking at our own island, it is happening right here. They are like water vampires. They can only come in if they are invited. Once they are, they will suck us dry. Meanwhile, they quench their insatiable thirst for money and greed by hijacking and selling our water. I repeat, our water. Not the County's. Not the State's. Not the Fed's. Ours, yours and mine, and all the natural systems as Cory mentioned and processes above and below that depend on our abundant, clean life giving waters to function and survive. They will inevitably pull permits to expand output and production once they are established. With only eight employees which barely covers staffing and a skeleton crew, administration positions rather, and a skeleton crew, it looks to be a very highly automated operation. The State and County will receive some residual benefit in fees and taxes but hardly worth the impact with zero benefit to our community. We know how the County and State manages our money from the recent Kilauea eruption crisis. Twelve million dollars in emergency relief came to the County to Mayor Kim, from Governor Ige and the State in early June. Twelve million relief, for direct relief to the victims of the eruption, I wanted to say. In early June, it arrived. Zero was spent on one single meal, mask, tarp, cot, candle, tent, shelter, propane stove or tank, battery, flashlight, rain poncho, Band-Aid, umbrella, can of beans or bottle of water, an aspirin, or even a single raisin for the evacuees and the affected community. Not even one single cup of hot coffee for one of the evacuees who were sheltering in the Pahoa Gym, baseball dugouts, and surrounding parking lots, pardon me. Nope, but it did cover payroll of salaried County employees at time and a half for their overtime as Civil Defense volunteers. It also went to County Police and County Fire Department for overtime pay. So, since they seem to think we don't matter or don't exist for that matter, we need to be ready, able, and willing to send a clear, strong, loud message of solidarity. The elected officials at all levels that are representing this area of Hilo are pro-business, which is fine. It's okay. That's good. But, not so pro -people and community and environment, and that's not okay. Clearly, in retrospect, they have already proven themselves unworthy of our trust. The discussion should be how to spend the requested this is when they were talking about $800,000 in relief, okay—so the requested $800,000 in Kilauea recovery funds, like to create what is a CLARKSON: Excuse me? RATHBURN: Yes? CLARKSON: Could you just restrict your comments to the issue before us today RATHBURN: —Yes, okay CLARKSON: rather than trying to rehash the RATHBURN: well, you get the picture on that, so I'll go past that. So, anyway, what I wanted to say in essence on that is just that basically the money that was intended for the community's relief was not, did not arrive to the community but rather to other entities. EXHIBIT D 21 Anyway, so, I'll just go back down to where we're talking about. Okay, so, instead they, okay, instead of permitting—instead of permitting this evil, greedy private venture that will be busy sucking out our greatest natural and public resource non-stop year after year, meanwhile, they had the audacity to consider diverting twenty-two million in Kilauea disaster recovery funds to Hilo Bayfront improvements for a bike path. So, it's time to come together and protect ourselves, our resources, and I'm talking about all of us, not us and them. All of us together whoever we are that live here and drink this water. Our resources and all our future generations here in beautiful Hawaii. It does not take a kahuna or rocket scientist to see the big picture. Calling all water protectors and that's all of us, because we all need to protect the water. This is very much all of our kuleana. If you believe in protecting our island, its inhabitants, and precious resources, please get involed and do something about it, and let people know how you feel, and so that's what we're doing today, and we appreciate what you guys are doing as well. Talk to each other, inform your families, etc. I'll go on past that. You guys don't need to hear all that. So, I just want to say that I want to stand along with others for the, for the Wai Ola, for the sake of water. It's the waters of life that belong here in this area for the children, for ourselves and for all our future water, because water is life, and don't waste it, don't foul it, and never allow anyone to own it or prostitute it, such a divine resource. Water is sacred, and we are made up of mostly that which we should be defending with everything we have before we have nothing and are forced to beg for safe, clean water. To put it simply, this is a terrible deal unless you are two foreigners with nothing to lose and all our water to gain. I'm sorry, but I cannot accept this as a community member and would appreciate it if you guys would consider the more poignant points of my message. Thank you so much. CLARKSON: Thank you. Are there any questions from any Commissioner for either of the testifiers today? No? Thank you very much for your testimony. RATHBURN (from audience area): Thank you very much. Is it always this empty? HALL: It depends. CLARKSON: Depends on the issue. You're very welcome. There being no further testifiers from the public today, the Chair will ask for a motion that public testimony be closed. REPLOGLE: I move that public testimony be closed. IKEDA: Second. CLARKSON: All those in favor? COMMISSIONERS: Aye. EXHIBIT D 22 CLARKSON: Opposed? Motion is carried. Public testimony is closed. Okay, now we need to have a motion for action one way or the other. We'll start with the revocation of SMA 334, I believe. KAY: Yeah, that's correct. IKEDA: I move that the request to revoke Special—SMA Use Permit No. 334 be approved based on the Planning Director's recommendations which shall be adopted and the reason for approving is that if we approve the other SMA, this thing is going to be moot. CLARKSON: Is there a second? REPLOGLE: Second. CLARKSON: Is there any further discussion? This is just the revocation of an old SMA Permit for a fish processing plant. KAY: That's correct. CLARKSON: If not, please poll the Commission. KAY: Thank you, Mr. Chair. Commissioner Ikeda? IKEDA: Aye. KAY: Commissioner Replogle? REPLOGLE: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Raffipiy? RAFFIPIY: Aye. KAY: And Chair Clarkson. CLARKSON: Aye. KAY: Thank you, Mr. Chair. Motion carries five, nothing. CLARKSON: And which of the remaining two applications should be voted on first in your opinion? EXHIBIT D 23 KAY: Initially, we talked about just doing the SMA first and then the amendment to the rezone. CLARKSON: Okay. Any motion for action on the SMA 18 we can have a motion and then we can have discussion and then any potential amendments would come then, unless you have a particular amendment for the SMA or an additional condition right away. REPLOGLE: I just want to be sure I'm following which one we're on. HALL: Number 5. CLARKSON: Okay, we're on Number 5. REPLOGLE: Okay. CLARKSON: SMA Application 18-000070. REPLOGLE: That's for the plant. CLARKSON: The water well, the bottling plant, and all the conditions that go along with that, that I asked Christian to review earlier. I have a couple of proposed, if I may be so bold, additional conditions or revisions to a condition. One would be that the noise standard be reduced to residential. I used to work at a power plant that had a residential noise standard at the property boundary. I see no reason why especially in this location, the 55 dB at the property boundary couldn't easily be met and considering that it's near a park, resort -zoned property, and I don't see any reason why that wouldn't be appropriate. And, the other would be a limit on withdrawal of 200,000 gallons a day as part of the condition of the SMA. The Applicant has already indicated they are willing to limit that, and I think it needs to be put in as a condition. KAY: To the first question about the noise level, I think the reason—and we grappled with this as we were crafting the condition language—the reason that we put it at the industrial level is due to our experience with the Hu Honua permit, that's very difficult for us to enforce that condition. So, even if you have it at the residential level, we've got to call Department of Health out to come and do the tests. At that time, they can stop pumping or creating the noise, so I think we just kept it at the industrial level for that reason. We are happy to entertain that condition change, but that was the reasoning. CLARKSON: Well, I realize the big issue of construction versus operation that happened with Hu Honua. I want to make clear, I'm talking about operations, not construction, and believe me, there are ways to enforce noise limits after the plant is operational, and it's done all the time. KAY: Okay. CLARKSON: If not by you, by the Department of Health. DARROW: Mr. Chairman, so again, the difficulty that we had with Hu Honua is we received multiple complaints for the noise violation. There wasn't any clear direction in regards to the EXHIBIT D 24 limit of noise being during construction or not during operation. It just had a standard 55 dB level at the boundary. The difficulty with the Planning Department was regardless of whether it was during construction or operation, Department of Health would not enforce the noise limit at a standard lesser than what their standard was. So, we could request that they come out and do the noise test, and if that level is at the lower or at the higher level, then we would bring it back to the Commission to enforce. But, the reality of having the Planning Department becoming the enforcement arm of noise levels meant having to purchase a series of noise meters that were a certain standard that were apparently, in talking with Department of Health, were costly, as well as the training that was involved as well as the yearly or however long they have to calibrate these types of noise machines. So, that was the difficulty that we had. And, again, the intention was good. It was meant to support the surrounding neighborhood that they would be assured that this, that this plant would operate at a certain level, and the plant themselves were amenable to it and agreeable to it. The difficulty that we came across was the enforcement of it. CLARKSON: I'm fully sympathetic with that, but I think that if the decibel limit is written into the permit and whoever neighbors, members of the public believe that that permit is being violated and they're irked enough about it, they'll figure out a way to have the noise level evaluated in a legal manner and raise a complaint and something can be done. I'm not asking the Planning Department to do that. I'm kind of disappointed that the Department of Health would not as part of their routine if they are willing to come out and monitor an industrial level, why can't they be willing to come out and monitor a residential level? It makes no difference to them, but that's an issue for another day. I don't have any power over the Department of Health. IKEDA: Mr. Chairman? May I call Mr. Fuke up? CLARKSON: Please. IKEDA: Sidney, you know, I looked at—I didn't look at the plan, you know, the building plan how they were going to build the plant because I'm very familiar with manufacturing. I used to own a soda company, and we built our factory with hollow tile, so we had no noise problem. So, you know, I looked at it, and it looks like metal, and I didn't pay too much attention, so, I want your thought, please. FUKE: Sure. At first, I, you know, I was thinking well like maybe like limiting it to commercial value, commercial level because there's a property across the street, you know, Freddie's, that complex is zoned commercially, but, you know, at 55 dB level, if that's the Commission's desire, then that can be achievable. You're correct, Commissioner Ikeda, because you can develop a baffler system. You can have like, you know, whether it's going to be—if it's a wooden construction, for example [inaudible] or iron, you know, like iron roof -type, then obviously the sound is going to penetrate beyond, but you can develop bafflers, appropriate bafflers to muffle the sound as you well know. So, having 55 dB, then, you know, I think that can be complied with. The other point, and thank you for the opportunity, is like I serve on the Liquor Commission Adjudication Board and we've had like a number of noise issues because when you issue like, you know, the liquor license, and then there are conditions relating to like you have to follow a EXHIBIT D 25 certain noise level, especially when you have nightclubs adjacent to residential areas, and so, the liquor inspectors have been trained to go out with those decibels and, you know, do those measurements, and alternatively, the complainant also has those kind of machine, and so they provided information to the commissioners and then, of course, our inspectors, well, we have to find some ways to kind of corroborate that information. So, I think that I can recognize the difficulty in, in having, you know, the Department necessarily enforce it, but I think having it specifically stated, you know, 55 dB, and if you have a neighbor complaining or whatever, then there is a greater enforceability, so the long and short of it, we would have no objection to such a condition. CLARKSON: Thank you. KAY: Okay, thank you. So, the way the condition reads now is, "Sound Levels shall follow the State of Hawaii Department of Health rules for construction noise and operation in industrial areas, HAR, Title 11, Chapter 46 (Community Noise Control)." Did you want to bring it down to specifically say residential or say 55 dB? CLARKSON: During operation. KAY: During operation. CLARKSON: Yes. Only the whole sentence can stay that way except for, in my opinion, to change it to 55 dB after the plant goes into operation. I don't think there's any way to drill the well and build the buildings, but after they're all done, and the plant, you should just have, you know, the whine of the pump if there is a pump and some interior noises from the building. KAY: Sure, thank you. And, then your second proposed or additional condition was about withdrawal of water. I tried to work out some language as we were having our discussion, and here it goes, "As represented by the applicant, withdrawal of water from the proposed well shall be limited to 200,000 gallons per day. Any expansion beyond this amount shall require an amendment to this permit." CLARKSON: That would be fine with me. KAY: Okay. So, we still need to have— CLARKSON: A motion KAY: a motion. CLARKSON: A motion. REPLOGLE: Okay. I move that the application for the Special Management Area Use Permit, Docket No. SMA 18-[0]00070 be denied for the following reasons. Water is a resource for the people, and I agree with one of the testifiers that it's being privatized all over the world, in our EXHIBIT D 26 country, and that is people grabbing up a resource for their own personal benefit and enrichment where we should be thinking more in terms of all life on the planet versus my life. A second reason is the excess water coming out of the aquifer into the ocean is not wasted. That water is very nutrient rich, provides nutrition and value to sea life. That sea life is the beginning of life on the islands, on the planet. And to begin to CLARKSON: Excuse me. I think, just a procedural matter, I think, I'm going to stop you there and ask you to start again in just a second. During the discussion period, after you have a motion that's been seconded, so as soon as we have a second and we go into this discussion REPLOGLE: —Then I go CLARKSON: —then you go. Is that— REPLOGLE: That's fine, please, second CLARKSON: Or is he allowed to discuss the reasons entirely in advance without a second? HALL: Well, the reasons are basically part of the motion, so yeah, I mean, it would be good to have them be concise, but yeah, I mean, the reasons are part of the motion as well `cause they should be all in one, yeah? CLARKSON: Forgive me REPLOGLE: —Yeah, it kind of says you make and then what your reasons CLARKSON: Excuse me. Please proceed. REPLOGLE: You're excused. So, it's pumping nutrients into the ocean and that's what has made Hawaii Hawaii. That's what makes the East Coast of the United States the East Coast. A third reason is the potential, we talked about, tsunamis, but we haven't addressed the potential for sea level rise, which is happening. You can ask people who are living in Miami, but a couple years ago, I saw a presentation put on by the University of Hawaii Marine Biology Department on the potential for sea rise level, sea level rise in the State, and potentially, the whole reef runway on Oahu will be under water at some point. And, this is in direct correlation to the CO2 and the petroleum that we are extracting and using which goes into number four, the plastic. We are inundated with plastic on this planet. I don't know if any of you have ever gone down to Kamilo out in Ka`u to help with the beach cleanup. They go once a month, and they pull about two, two and a half tons of plastic off that beach every month. The first time we went, we pulled 17 tons, and we all know how heavy plastic is. So, that's a lot of plastic. It covers the whole beach. Wildlife are being found with the plastic in them. It's beginning to break up. The bottle caps—they're finding those in birds on Midway. They find the carcasses and then here's all the plastic in their crop with plastic bottle caps. EXHIBIT D 27 The planet is warming or climate change is happening. We can deny it or not believe it, but it is happening. Science has proven this, and if we don't start somewhere and make a stand to keep water for the people and to do however small it is, an action to stop polluting our planet, we're going to be up shit creek without a paddle, and that's why I move to deny this permit. I'm sorry. I wish I could say yes, but I can't. That's all. CLARKSON: Is there a second? RAFFIPIY: I'm going to second the motion so we can discuss. CLARKSON: Okay, it's been moved and seconded. Any further discussion from the Commission? That was an extensive list of reasons in support of the motion. Any further comment from the seconder? Mr. Raffipiy? RAFFIPIY: So, basically, what you offer as a condition, other conditions, is pretty much nullified, right? With that motion that was just presented. CLARKSON: That would have only been relevant to a motion to approve, so those conditions that I was talking with Christian are not relevant to this motion at all, and if this motion passes, they will never be. KAY: Correct, not with this body. CLARKSON: If there's no further discussion, it's time for a vote. KAY: Okay, thank you, Mr. Chair. Commissioner Replogle? REPLOGLE: Aye. KAY: Commissioner Raffipiy? RAFFIPIY: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Ikeda? IKEDA: No. KAY: And Chair Clarkson. CLARKSON: No. KAY: Okay, the motion is three to two. That does not pass. EXHIBIT D 28 CLARKSON: Okay, the next item to be taken before— HALL: —You have to take another motion. CLARKSON: Hmm? HALL: You have to take another motion for action. CLARKSON: Oh. KAY: You can consider a motion for approval as well if there is—that particular motion failed. HALL: Because that motion didn't carry, so now basically it's still just sitting there. There's nothing. You need a motion to carry through because you have to approve or deny. CLARKSON: I don't understand here. We've had a motion for action. It's been approved. HALL: No. That motion didn't carry. So, you have to have four votes to carry a motion. KAY: And you had three votes. HALL: So, that motion doesn't carry, yeah. CLARKSON: Oh, I'm sorry. I totally misunderstood. I thought you had to have a majority, but no. HALL: No, you have to have a quorum. So four is a quorum. That's how you would carry a motion. CLARKSON: Okay. IKEDA: Mr. Chair, could we send it up with no recommendation? HALL: This one is just for the SMA Permit. So, this isn't—this is just you guys approving or denying. There's no—this one's getting forwarded anywhere. CLARKSON: Well, I see no reason, I mean, I don't see any reason for a motion for approval when there's already three votes demonstrated to be against. So, how are we DARROW: You could request for another motion and see if you could get the votes. If there is a motion to approve and then you would run through that. If you cannot get past the SMA Permit, then the Applicant can request a reconsideration of the SMA Permit. But without the SMA Permit being approved, then there's no sense going forward with the ordinance because this has to have an SMA Permit to operate. EXHIBIT D 29 CLARKSON: Okay, I, I can see that, but I don't understand why I should ask for a motion for approval at this point? HALL: You have to go through the motions. CLARKSON: Okay, Corporation Counsel has indicated that I am required to ask for a motion for approval. IKEDA: I'll make the motion. I move that the application for a Special Management Area Use Permit, Docket No. SMA 18-000070 be approved based on the Planning Director's recommendation which shall be adopted. CLARKSON: I'll second on the condition that the conditions and limitations that were discussed previously be included with the motion if that's okay with Commissioner Ikeda. IKEDA: That's correct. CLARKSON: Any further discussion? YEE: I want to add thatI want to throw some caution into, I don't want to make decisions or decisions being made that if I get sued one way or contested another way, that's how I make decisions. However, we also have to understand where our authority sits with the Commission and where you deny applications. Within our authority to deny, if we step outside of that, we are inviting an appeal of our decision that eventually if it's not grounded legally, it's just going to come back to us in some way. So, 1-1 appreciate today's discussion. I wish there was more authority for us to deal with a lot of the issues we have at hand, but we don't. We're not given the authority for royalties. I don't think we don't have a carbon tax yet for the State. Those are issues that the State are looking at. So, I just, again I understand where the earlier vote went and why it went that way, but I really want to have folks to understand that, you know, I could see this coming back around to us in another form. So, really ponder your reasons for your decision here. Thank you. KAY: And I wanted to just—okay. DARROW: So, just so the Commission is aware of what the rule says, Rule 9, is that you have to, there has to be a decision made either for or against or it's denied. Okay? So, if you don't come up with a decision one way or another, the application is denied. That's in Rule 9, I believe it is Rule 9-11(f). Let me get back there9-11(f) under Decision and Order. Additionally, it says the applicant may request the Commission to defer action on the application. A majority vote of the total membership of the Commission is required if the applicant requests to defer. In the event the Commission fails to render a decision to defer action, again the application is denied. Lastly, if the application is denied, the applicant has an opportunity to request a reconsideration within a period of time. EXHIBIT D 30 CLARKSON: You know, I can see all of this, but I can't have but a great dealI'm going to withdraw my second. I cannot help but believe that the, unlike some other times, well let me ask, before I do that, you were all sincere in your votes in favor of the motion to deny. REPLOGLE: Yes. RAFFIPIY: Can I just say something? Can I elaborate on that why I voted to support the motion? What scares me is this, the rising tide, and being so close to that area, the water, and once we penetrate that, we make penetration into our water system, and if there's no other way we can permanently cap that then and ensure that there is no, the water is not going in and contaminate our water system, that's our this is only one island. There's no other place where we can go from here once our water system is contaminated. I appreciate the business. I appreciate because I drink a lot of water, but I also have to look at—we have to look at 10, 20, 30 years from now. Once we establish something—if there is a permanent way where we can reassure the public that we will restore it to the way it was or better, then I would reconsider my vote. Otherwise, I just have to vote that way simply because the location of, of the bottling plant, the proposed bottling plant. That's the only reason. AGUINALDO: And Mr. Chair, my decision is opposite from both of them, is I don't wanna discuss royalties. I don't want to discuss fees. If this goes approved, what benefits, our culture, the Hawaiian community, that it's not our decision, it's a decision of one that must make that proposing what they propose is like again what you take from me, what you going give back. I take this from you, but braddah, I take this from you, but mahalo, thank you, here for you, too. You know, it's not no royalties, whatever you guys talking about royalties or money. It's like braddah, I give you this scholarship money because thank you, mahalo for what I was, what I wen take. It's kind of like I want to say it in my culture, you know, it's like the aloha, you take something, you give back in a different way. If there was a way, not for us to decide, Corp. Counsel, Council, whatever, it's not for us to decide is, you come before me, I present this to you. Is it a good idea? You come with your plan of action. You come with your proposal. And, like what he indicated, that's true. Water is quality of life. But, it's like you take from me but what you giving back? `Cause this is what I proposing and that was my decision, but I don't know how this can be implemented, but as far as that there, that's for me. That's, you know, I, you know, if that could be implemented there, I reverse my decision, you know. It's like, again, it's for these two people with their client to decide, is this is what I'm proposing Gilbert, you know, I know this is—you know, it's a touchy subject because it's water. It's land. But, if there was a way that they can come up with, not going through this, goes to a non-profit, a Hawaiian non-profit, goes to them. I'm cool with that. You know, I'm totally cool. CLARKSON: Please come forward if FUKE: Thank you, Mr. Chairman, for making the exception. I think we stated on the record, you know, and answered to both of your questions like one is that there is already an existing condition that requires that emergency preparedness plan, and if there is a need to expand that to make it very clear or explicit that to address like sea level rising or the potential for like a tsunami threat so that there's an immediate shut-off to minimize any potential intrusion of that EXHIBIT D 31 seawater into that water that even I drink. We all drink, right? You know, that can be expanded as a condition, you know, in the SMA Permit in conjunction with the emergency preparedness component of that condition. Relative to, you know, the question that you raised Commissioner Aguinaldo, I think that we tried to share with you what we understand is like already the Applicant's position. We can't make a specific commitment. Neither can we come up with specific language right now, but we're asking the Commission that in conjunction with the Change of Zone time extension request to so articulate the concern to the County Council and the County Council being a legislative body will probably have a greater legal authority to make such an imposition. And between now and the time that the Council considers it, you know, which would be in about six weeks and so, and they have three readings on it, you know, we'll work something out with the Planning Director in coming up with language that, you know, addresses maybe not fully, but addresses that particular comment that you made. CLARKSON: Okay, thank you. AGUINALDO: Mr. Chair, so whatever Mr. Fuke indicated what he discussed with me is, you know, it has, if it's approved, now it goes to three readings. It gives, buys them time to come up with, you know, what they're proposing and it's going to be us again to agree or disagree? CLARKSON: No, there will be—our role will be completed. This is our last time to make a decision on the SMA Permit and so it will be out of our hands after this. It will be in the County Council's hands only in consideration of the rezone. Isn't that correct? HALL: Yes. But, if you deny the SMA, there won't be much reason for the rezone. CLARKSON: Correct. So, you will be and you are perfectly welcome to do that. If we, if you, if any person who voted to deny changes their mind and there is a vote for approval, then it will be approved, and we will have no control over what the County Council does in terms of conditions of rezone. We can make recommendations. We can trust Mr. Fuke and his clients to do the right thing in your, from your point of view, but we won't have any legal control over any of it. AGUINALDO: It moves up to Council, right? CLARKSON: Correct. AGUINALDO: So, Mr. Fuke, that's the only recommendation and condition that I have is that, you know, for me, again, if someone, if something is taken, if you take something, you give back something else. I mean, you know, we all grew up in plantation culture. Eh, braddah, thank you, eh, you give back something else what you wen cook. You guys trade off So, to me, it's not a barter. It's not a trade. Again, this is not no, no fees or whatever, but if you can come up with a good proposal even with your client and the client's attorney. I leave `em in the counsel's hands. You know, it's premature to decide right now because it's not approved, but if it is approved, then you folks come up with your folks decision and bring `em up to Council and we will pass EXHIBIT D 32 that on to have them, you know. You know, it's something, some way to give back. You know, again, you give back something, you know. So, if that is agreed upon verbally, not in writing, I would like to change my decision, with the condition, though, that it goes to a Hawaiian non- profit, you know, for educational purposes for the children or some kind of scholarship. To me, that is a good way of giving back. CLARKSON: Okay thank you. FUKE: Maybe, if Mr. Chair, can we have like a five-minute request CLARKSON: Recess? FUKE: Can I, recess, I'm sorry. Then I'd like to kind of confer with the Applicant's attorney and then maybe we'll come back again in five minutes. CLARKSON: Okay. Five-minute recess. Chairman Clarkson called a recess at 11:27 a.m., and the meeting was reconvened at 11:38 a.m. CLARKSON: The Windward Planning Commission is now back in session. Please, everyone, excuse me. Please continue, Mr. Fuke. FUKE: Drinking water from that plastic bottle would help. Yeah, I've had—thank you very much for the time, and in discussing it with the Applicant's attorney also, we were thinking about something along these levels, I mean like, you know, conceivably, you could basically punt the whole issue to the County Council, and there may be some residual question among the Commissioners like oh, can we trust the Council, can we trust what we're gonna do. I mean, I would probably come back to you again, so then you wouldn't trust me, so I'm little bit worried about that. So, you know, we were thinking about maybe like recommending this condition be made part and parcel of the SMA Permit. And, what it would read would be, and I just kind of scribbled down something like this like, "Prior to the issuance of an occupancy permit for the operation of the well, a program to equitably fund a non-profit organization to address the educational needs of Native Hawaiians shall be developed and implemented in conjunction with the operation of the well." CLARKSON: Well, that might be fine for Gilbert, but I would rather it actually go to protection of the watershed. Just to draw the, you know, to have a nexus, a tie between the permit, I'm okay with it, but the whole reason I supported John's original proposal, Commissioner Replogle's original proposal to have an extraction fee, was that protection of the public trust requires us to protect the resource, and we could only do that with some amount of funding to protect the watershed and protect the water and monitor extraction. Since we're not allowed to do that, something else would have to be imposed as a condition of the SMA Permit. REPLOGLE: It's kind of like taking reef fish for commercial purposes. That's our natural resource, and why can they do that, and they are issued permits by the State giving them permission to do this, and they put nothing back, and the reality is, I think, we need to stand up EXHIBIT D 33 for the planet here, and we have quite a bit of evidence that privatization of water has not been good for the general public. Case in point, in Flint, Michigan, they still don't have good water, and I'm not real familiar, but not far away, Nestle Corporation is extracting water out of the Michigan aquifer and making a profit on it, and the people in Flint just, well, that's just how it is. You live there; I live here. And, at Red Hill on Oahu behind Pearl Harbor, the big, the two big fuel tanks which apparently have leaked and they are only a hundred feet above that aquifer, and that will affect 400,000 people. And, where are they going to get their water from if it becomes contaminated? Very possibly, this Mauna Kea Aquifer. Therefore, I feel we need to guard our water, keep it for the public only. CLARKSON: Okay, there is stilloh. FUKE: I'm sorry. So, if that's the question then, you know, obviously like everything can't this is a business. It has to be like reasonable and like equitable and I think that like what Commissioner Aguinaldo was saying was that, you know, growing up small kid time, there's always this give and take, so not necessarily, you know, you get more than me type, you know, so I understand the concern and also as it relates to the SMA objectives. You know, the public doctrine question and also like Native Hawaiian issues also are very relevant issues to the, you know, goals and objectives for the SMA. So, given that and I was just thinking that maybe we can expand it to kind of like read along these lines then: Prior to the issuance of occupancy permit for the operation of the well facility, a program to equitably and reasonably fund a non-profit organization to address the protection of the aquifer, the affected aquifer, and the educational needs of Native Hawaiians shall be developed and implemented in conjunction with the operation of the well. And, the operation of the well, for example, if the program is such that, you know, the program that's developed and to be assigned to the non-profit, is like, you know, you get a percentage of like, you know, how many cases you sell or whatever have you, then it's kind of like an ongoing thing, you know for its maintenance rather than like a one-shot deal, so. CLARKSON: Okay. You're willing to have that as an amendment to the SMA? Now, we're leaving out any financial thresholds. BUNN: Well, we areI mean, as you can see, neither of us has spoken to our client. I have worked with this client for a long time. I trust them. They are good corporate neighbors. They are good citizens. So, I am confident that they will be agreeable to some give -back. What specifically that is in terms of dollars and cents—that's why I hear what you are wanting and you are asking for, but I am a little bit cautious about being quite as specific as Mr. Fuke even wants to be without talking to the client. So, in terms of putting a dollar? I mean, I think we can all talk about and we can talk to the Planning Director about, you know, what this would be used for. I agree there needs to be some connection to the actual project and any potential impact, you know, and I'm sure that there is a way to fashion that. I mean, maybe it is education for Native Hawaiian children about the value of water and the dangers of climate change. I'm sure there is something that can be agreed upon. I'm very cautious about specifics in terms of dollars just because I don't have authority from the client. EXHIBIT D 34 DARROW: If I might chime in? If I can just raise some concerns? You know, when we look at these permits, we have criteria for approval. You don't see a criteria that says if the applicant gives this, then we'll approve. It's based on particular criteria. In the SMA Permit, it's on protection and—of the SMA. I mean, you're looking at this criteria from a particular point. Now, all of a sudden we're getting into this, this discussion about, well, I'll change my mind if you give this, then I'll go ahead and approve. Unfortunately, we haven't looked at the criteria for approval from that standpoint. So, these are—these are things being added in at this point that are just coming into the discussion now. And, again, that's not to say that in the past there hasn't been things proposed in permits that would be a benefit that had a clear nexus to the request. And, I used an example earlier that when there was a particular project coming into the SMA, and it was going to have a possible impact on parks in the area, they came in and proposed to do major improvements to the parks because they were going to have an impact on the parks. So, again, justI want to caution the Commission to understand that, you know, when we look at approvals and denials, we have criteria that we stay focused on. FUKE: One, one—I'll probably get fired after this project, so, but anyway, like I would defer to what counsel is saying that, you know, we really should get a chance to discuss it with the client, and I would reiterate what she says in that knowing the client for so many years, that he is a very generous person and very giving. I'd like to, you know, therefore, kind of go back again, you know, to say that between now and the time that the, you know, rezoning time extension is considered, we'll be able to craft the language and then, you know, vet it off of the client, and so that I don't get fired, and then come up with something. And, I believe like, you know, if you look at, you know, as far as the ability to impose some sort of like an impact fee, you know like and you know what Mr. Darrow indicated, is so true. You have to have like two, it has to relate to two criteria. You know, rational nexus and proportionality. It has to be fair and has to have some relevance. And, so, on the—at the Council level, you know, when you guys consider all zone change, there's this fair share requirement, right? It addresses road, parks, solid waste, fire, and police protection, but there's nothing that discusses things like maybe like protection of aquifer or Native Hawaiian cultural rights, those kinds of things. You know, so, we need some time to kind of think about it, and I think that being that the Council already has this, has imposed this fair share notion on the zoning ordinances, then I think also the Council may have the ability to expand that to include maybe in certain situations, situations like that. So, I retract my proposed conditions, but I think just something along these lines can then be vetted with the client and then discussed with the, you know, with the Planning Director and the County Council. CLARKSON: You're not asking for a continuance to come back to us, you're asking that we vote on this now and leave this issue to discussions with the Council. FUKE: Yeah, we would respectfully request that, you know, hopefully like a favorable motion be made to approve the SMA subject to the two additional conditions, one relating to the noise EXHIBIT D 35 restricting it to the 55 dB and the other one limiting the amount of extraction to no more than 200, you know, million gallons per day. I mean, that's totally acceptable. And, relative to the zone change, the time extension request, to recommend its approval and the Commission also articulate its concern about wanting to have some additional consideration be given to both protection of the aquifer and Native Hawaiian rights in the event that this is, you know, this project is developed. CLARKSON: Okay. I think it's time to have a vote then on theoh, I'm sorry. RAFFIPIY: Can I ask one more question? I just wantedI, my vote again was on protecting the water, the water system, the aquifer, and, what relates to rising tide. I'm not sure I understand what the permanent, let's say permanent shut down of the system if and when we're going to get, you know, that thing is going to, that area is going to get inundated by water. I, personally I feel it's just a matter of when. I've seen places where there, they have, they are completely under the water, in the Pacific Ocean. Right west of Hawaii. So, that's my, that's — I don't know. I have not seen the plan yet on what it looks like, you know, I don't know if you will pour concrete into that, that pipe and fill up the whole 1,000 feet of pipe to permanently shut it down. Maybe if that's what it is, you know, I just need to see so that I can be comfortable with it, that we will not, it will not pollute. We're not going to tamper, I mean we're not going to, yeah, pollute our water system, our aquifers. FUKE: I forgot to mention that, you know, like if you want to make that very clear, then Condition 11 can be expanded to read as follows, and you know, "The applicant, its sucessors or assigns shall file an emergency preparedness and response plan including the protection of the aquifer due to natural disasters with the Hawaii County Civil Defense Agency and the Planning Department prior to the issuance of a certificate of occupancy for any portion of the proposed development." So, I believe that with that expanded language, it makes it clear that the Civil Defense and Planning Director have an obligation to address that particular issue that you raised. RAFFIPIY: Yes, and I guess to—to maybe a. specific to a point that we can specify that you're going to shut it down permanently and it will not, no water will go inside and contaminate the aquifer. I'm just looking out for the public, not in next year or so. I'm looking out, I'm thinking about ten, twenty, fifty years from now when we all pass away and, you know, `cause once we, once we tamper with that, that aqua— FUKE: —The aquifer, yeah RAFFIPIY: Yeah, that aquifer, we cannot, we cannot go back and, you know, take back what we did. It's going to become permanently damaged. But, if there is a way where we can guarantee future generations that we can, we have the capacity to permanently shut that thing down if there is rising tide, for example, where—tsunami is just coming and gone, rising tide is going to come in and stay there. We're going to get inundated. That's all I wanted. EXHIBIT D 36 FUKE: Yeah, so like and in that regard of like having both the Civil Defense Agency and the Planning Department be the overseer and the approving entity I think would provide that kind of protection that you're asking for. I would hope—if you can trust the Planning Director, the Department, and the Civil Defense Agency. CLARKSON: Further discussion? REPLOGLE: Yeah, a little bit. Are we allowed to ask for a continuance to allow them to line the ducks all up or? I'm still against it. I'll be against it next time, too. But CLARKSON: I believe we are because— REPLOGLE: I say a bird in the hand is worth more than two in the bush. CLARKSON: That would be my preference, too, because I would rather see these conditions be part of the SMA while we have control over them rather than be left to the Council, not speaking ill of the Council, but. FUKE: Can I make one suggestion? So, if that's the inclination of the Council [sic], can I make a request that at least the rezoning extension portion on the, you know, be considered right now, so that portion can be moved, `cause if you're going to be deferring this and on the SMA portion, too AGUINALDO: —The whole thing, yeah? FUKE: Yeah, yeah, to include and, you know, like some sort of like language then, you know, for one month, then, you know, we don't necessarily want to hold up on the zone change portion because that takes like an additional three or four months from now. CLARKSON: I thought there was a connection, a link between the two that you couldn't have one without the other although it would probably take a lot longer to get the rezone then for us to act. DARROW: There is a link in the sense that the SMA Permit does not become valid until the Change of Zone permit is approved, so that's the link. But, the concern is that if this goes up and there is significant changes as far as conditions, my understanding is that it has to come back down. So, that's a concern. CLARKSON: The rezone has to come back? DARROW: Correct. If there are what is substantial changes, and I would, I justI'm not sure if the conditions that you're talking about implementing up at Council are considered substantial—but there is a chance they may say or we may say that was substantial and it should come back down. EXHIBIT D 37 So, it might be, it seems like it might be more beneficial. I know that the Applicant is wanting to move this, but, again, there is concern about moving forward too quickly here and maybe the possibility of considering a deferral to work everything out before moving forward. Just a suggestion. HALL: Well, what's on the floor right now is that the, there would be no changes to the rezone. There would be only changes to the SMA Permit if the Applicant—after the continuance and the Applicant came back with their answers. So, at this point, I mean, if there's not going to be any significant changes to the rezone from our part or that we are recommending, I don't see why it can't, the rezone can't be approved now. I think that the SMA still with a one month delay would still probably get approved before the rezone. KAY: So, where we stand now, Mr. Chair, is we still have a motion on the floor CLARKSON: We have a, we have a motion on the floor for approval subject to AGUINALDO: Rezone. CLARKSON: No, subject to the additional conditions of the 200,000 -gallon a day limit and the 55 dB post operation noise restriction, but KAY: You were considering whether or not to withdraw your second. CLARKSON: I was, and I will not withdraw it. I think we've spent a lot of time on this. I am very doubtful that the motion will carry, but I would like to see a vote on it. I might be surprised. IKEDA: I will withdraw my motion. KAY: Okay. CLARKSON: All right. At this time, there is no motion on the floor. Is there any motion—any further motion for action? IKEDA: Yes. I move for a continuance on the SMA 18-000070. CLARKSON: Is there a second? This is at the initiative of the Commission for one month. RAFFIPIY: I second. CLARKSON: Any further discussion on this motion? I heartily approve of the motion and would urge its passage and hope that in one month we can incorporate additional conditions related to community benefit from this project after you have a chance to talk to your clients. Any further discussion? KAY: Okay, thank you, Mr. Chair. Commissioner Ikeda? EXHIBIT D 38 IKEDA: Aye. KAY: Commissioner Raffipiy? RAFFIPIY: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Replogle? REPLOGLE: Aye. KAY: And Chair Clarkson. CLARKSON: Aye. KAY: Thank you, Mr. Chair. Your motion carries five, nothing for the deferral or continuance. Now we move onto the rezone. CLARKSON: Yes, we do. IKEDA: Mr. Chairman, I'll make the motion. I move that a favorable recommendation be forwarded to the County Council on the request to amend Change of Zone Ordinance No. 92 122 based on the Planning Director's recommendation and proposed amended [sic] conditions which shall be adopted. AGUINALDO: I second. CLARKSON: It's been moved and seconded. Any further discussion on the rezone recommendation? If not, please poll the Commission. KAY: Thank you, Mr. Chair. Commissioner Ikeda? IKEDA: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Raffipiy? RAFFIPIY: Aye. KAY: Commissioner Replogle? EXHIBIT D 39 REPLOGLE: Nay. KAY: Chair Clarkson. CLARKSON: Aye. KAY: Thank you, Mr. Chair. Motion carries four to one. CLARKSON: Thank you. You'll be coming back soon in a month with some proposals for the SMA part and approval. AGUINALDO: I'll be here. FUKE: Thank you very much for your courtesies and happy holidays all. CLARKSON: Same to you. The discussion ended at 12:02 p.m. Secretary's Note: There was brief discussion with Kamaki Rathburn, a member of the public, after the hearing, as follows. RATHBURN (from audience): Just so I understand AGUINALDO: Yeah? RATHBURN (from audience): Can I ask you a question? AGUINALDO: Yeah. RATHBURN (from audience): So, on the portion where he talks about bringing this back with some proposals as to what conditions might be applied as to what your suggesting, things of that nature, the limitation of the water that's pulled out, a program to benefit the community where so when you consider these things, are there, what is the process with you or anybody else, the community to propose to you folks what you can select. Like if I have an idea that I want to present to you guys do I just email you or AGUINALDO: I think you come for testify, yeah? RATHBURN (from audience): I mean is it legally okay for me to assist CLARKSON: I don't, I'm going to ask Corp. Counsel. We closed public testimony, but now we are continuing specifically to solicit additional conditions for the SMA. I would think we would EXHIBIT D 40 HALL: —What is his question? I'm sorry. RATHBURN (from audience): No, that's not my CLARKSON: —His question, his question wasI was going to get to your question by saying that we would be accepting additional public testimony with regard to these conditions at our, at the next hearing a month from now. KAY: And, also in the interim, if you'd like to provide testimony or suggestions to the Planning Department, you can do so. CLARKSON: In writing. KAY: In writing. RATHBURN (from audience): Okay, that was—and can I testify if I may? HALL: Can you speak into the microphone? RATHBURN: I'm sorry, if I may just very quickly make three points. Just so you, everybody understands. I've worked, you know, in many different things in my life, but what I have worked here applies to this scenario is that I worked with Hawaiian Springs. I was a truck driver. So, I delivered the containers to the harbor for export, interisland and internationally as well as to the local stores and what not. I also drove a water truck, a catchment truck where I refilled water catchment tanks for people. You know, many of us, thousands and thousands of us live without water service, so we catch the rain on a roof as you all know. We have slugs. We have a lot of problems with that. So, right now, especially with the lava, what happened, so not to get all into, you know, all over the place, but basically what I'm concerned with is this. A couple things. Some years ago, Don Thomas, Professor Thomas did a drill, exploratory drill, some program they were working on near the airport across from General Lyman field. They had a drill site there. They wanted to see what was going on between Mauna Loa and Mauna Kea. They selected that site. They drilled down many thousands of feet. I don't know exactly the details, but what I do know is during that drilling that they breached one of the aquifers, ruptured the aquifer, water came out of the top uncontrollably, Halbert was called in to seal it. They had some problems, but they were able to contain it, but the problem is underground, not what came out of the service by the airport but what's leaking underground. So, his concern is not just the level, sea level rises, but if a drill site, if a drilling takes place and damage takes place a thousand or five thousand feet down, we can cap it, but we can't CLARKSON: Mr. Rathburn RATHBURN: —cap the bottom. CLARKSON: Yeah, you'll be given RATHBURN: So that was a concern. The other one EXHIBIT D 41 CLARKSON: Please RATHBURN: Yeah CLARKSON: Please RATHBURN: I'm done with that. CLARKSON: Okay. All right. RATHBURN: I just want to say one quick one, okay? That when isin my experience working with the water, Hawaiian Springs CLARKSON: No, we closed RATHBURN: —they, they have— CLARKSON: public testimony. You it's going to be reopened again RATHBURN: It has to do with the noise. It's just that, that's it. That's all I want to say. One thing. The noise level, okay? They have the bottling section there. You can't close it because forklifts have to come in constantly in and out with pallets and you can't contain it so somewhere there is going to be an open direction where it's not going to meet 55 dB. If they can, maybe it's possible, but I don't think it's feasible. That's all I wanted to say. CLARKSON: Okay. RATHBURN: Thank you. CLARKSON: Thank you. This discussion ended at 12:06 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT D 42