BOARD OF WATER SUPPLY
COUNTY OF MAUI
REGULAR MEETING
Taken at the Kahului Shopping Center, Kaahumanu Avenue,
Kahului, Maui, Hawaii, commencing at 9:00 a.m. on
October 8, 2002 pursuant to Notice.
REPORTED BY: GLORIA T. BEDIAMOL, RMR/RPR/CSR #262
A P P E A R A N C E S
BOARD MEMBERS: Peter Rice, Chair
Clark Hashimoto
Mike Nobriga
Ginny Parsons
Jonathan Starr
Adolf Helm
Kent Hiranaga
Staff present: David Craddick, Director
Herb Chang, Engineering
Herb Kagehiro, Engineering
Ed Kushi, Corporation Counsel
Cathy Howard, Board Secretary
IWADO COURT REPORTERS, INC.
TRANSCRIPT OF PROCEEDINGS
BOARD OF WATER SUPPLY
REGULAR MEETING
OCTOBER 8, 2002, 9:00 A.M.
CHAIRMAN RICE: Good morning, everyone. Welcome to
the regular meeting of the Maui County Board of Water Supply.
It's Tuesday, October 8th, 9 a.m. We're at the Kahului
Shopping Center.
In attendance we have members of the Board of Water
Supply, Kent Hiranaga, Clark Hashimoto, Adolf Helm, Mike
Nobriga, Ginny Parsons, Jonathan Starr, and myself Peter Rice,
Director David Craddick, Corp Counsel Ed Kushi, Jr., and
members of the public.
First item on our agenda is the approval of the
minutes from the regular meeting of August 22nd. It was
distributed in your packet. Board members?
MR. NOBRIGA: Mr. Chairman, move to receive the
minutes from our meeting of August 22, 2002, subject to review
within 30 days and if there are no corrections, additions, or
deletions, minutes should be filed.
MR. HASHIMOTO: Second.
CHAIRMAN RICE: Moved and seconded to receive the
minutes subject to review. Any questions, comments, additions,
or deletions? Hearing none, call the question. All in favor
say "aye."
(A chorus of ayes.)
Opposed say "nay."
(None.)
Motion carries.
At this point in the meeting we'll accept testimony
from the public and in anticipation of it being a long meeting,
I might just tell you that you have an opportunity to speak on
any subject that's on the agenda at this point or you can wait
until that subject comes up and I'll make time available for
you to speak at that time.
DIESEL: Is there time to speak about subjects not
only on the agenda?
CHAIRMAN RICE: No, ma'am, there's no discussion of
anything that's not on the agenda.
DIESEL: I went to the Web site and read -- it said
-- there was a section in the board meeting that people could
speak about something that was not on the agenda. I actually
took a day off to come here.
CHAIRMAN RICE: I don't know where that would be
coming from, that's never been the case. Mr. Kushi?
MR. KUSHI: Mr. Chairman, the Sunshine Law provides
that the public may testify on agenda items; but if this is
public testimony on the weather or whatever, it's at your
discretion. I would suggest that if you and the board have no
objections, you allow testimony and limit the testimony to a
time frame.
CHAIRMAN RICE: Mr. Starr?
MR. STARR: Mr. Chair, I feel we should allow the
public to have complete access in their ability to testify, and
if it's some item that we don't feel is connected to something
on our agenda, we don't have to act on it. But I feel that in
an attempt to provide absolute -- which allows the public to
say their part, I think that's public service. That's our
duty.
CHAIRMAN RICE: Okay. So the public knows, I don't
want to set a precedent for people bringing things up. If
someone writes a letter -- I always put things on the agenda.
I think you will find out that if you call to request something
to be on the agenda, I'm happy to put it on for discussion.
If we get into a situation where the public comes to
every meeting and starts talking about things that are not on
our agenda and we have a long agenda, we can get bogged down.
But this time today, I'll allow that testimony, and we're going
to limit testimony to three minutes at this point.
However, at this point I have -- Mr. Parker is here,
you want to testify at this point?
JEFFREY PARKER: I would wait until the item comes
up. I'd prefer to wait until the item comes up.
CHAIRMAN RICE: Okay. Okay, ma'am, would you come
up here and state your name?
DIESEL: My name is Diesel. I live in Kula. I have
been living on Maui for ten years. And in a really experienced
problem with my skin -- I'm going to try to keep this short and
so I will give you the shortest version I can. I never
experienced this problem before. I thought I had everything
from fleas to chicken pox to who knows what allergy.
I eliminated all my skin care products. I did
everything -- I put myself in a bubble and the problem did not
go away. I would go to see doctors and by the time I would get
there, there was nothing there; the rash was gone. I would be
waking up with tortuous itching in the middle of the night; so
bad it would bring tears to my eyes.
I was at a party once, I had to leave the party
because I was having a conversation and I was itching so bad
that tears were falling out of my eyes. I could not even
converse.
So to make a long story short, after several doctor
visits, I was aware that there was something being added to the
Kula water. I did not know what it was, but I knew it had
something to do with corrosion control. I called to obtain a
materials data sheet on this product. I got a copy of it and I
sat there with my mouth open, wide open, looking at the
symptoms that I had been going through for the last month.
So I'm totally frustrated talking to people about
getting filters. I could not get the stuff out of my water. I
found out that you can't get it out with a simple filter, it
will take a system that costs over $2,000. So I just kind of,
for a week more, I suffered not knowing what I was going to
do. And after a week, this thing still is not going away,
which is rare for me. So I finally decided no matter what I
did I had to stop using the water.
So, fortunately for me, I have a reverse osmosis
system. I began an archaic bathing system and put a 2 1/2
gallon bucket in the sink, I fill it up, I put it on my stove,
I heat it up, I take it into the shower and I pour it on my
head. I did that once -- I did that in the evening, I did that
the next morning. I got up the next morning after my second
bath without using county water and I just stood there, my body
tingling. Feeling unbelievable. I could not believe 80
percent of the problem was gone.
My skin, at this point it was so fried on my legs
that I had a little case of eczema, but it was sort of like
this was what was left and it healed so fast. Within a week
all of the itching was gone. Since then -- it's been five
months and I have been bathing in a bucket ever since. A few
times I have gone back into the water and every time the
itching returns. If you want to know how it feels, spray hair
spray on your face, let it dry and try to smile.
CHAIRMAN RICE: Mr. Starr?
MR. STARR: This is not the first time we heard this
one, can we put it on the agenda for a future meeting?
CHAIRMAN RICE: Certainly. Any questions of
Diesel? Diesel, you want to give us your last name?
DIESEL: My full legal name is Diesel. That's it.
I don't have a last name.
CHAIRMAN RICE: Thank you. Any other questions,
board members? Diesel, was this reported to the department?
DIESEL: I spoke with David Craddick, he asked me to
obtain a doctor's note. He did not say I had to have
scientific proof, he just said obtain a doctor's report or
letter, which I gave him. And then when I called, he said,
Well, now you have to file a complaint with the county. Then
he looked at my note and he said, Your note is not absolute
proof, there's nothing I can do.
I then called mediation services, because I was
really uncomfortable and I was intimidated. At that point I
wanted to speak with the board through mediation and they
called him, and I don't know if you are aware of this, but --
CHAIRMAN RICE: They called --
DIESEL: Mediation services. I called them and I
requested mediation and they said they contacted David Craddick
and he turned down the request.
CHAIRMAN RICE: Okay. Any other questions?
Comments?
MR. HELM: I have one. Did you ever get the water
tested for any contaminants or anything?
DIESEL: You can get basic testing, but it's really
expensive, especially to test for this thing that's in the
water that's matching my symptoms. It's really expensive to
have tested. So I don't have the money. If I had the money, I
would put the system and get it out of my water. Because it's
working, when I bathe in the reverse osmosis water, it works.
If I could get the same system in my shower, I would in a
second.
CHAIRMAN RICE: Ms. Parsons?
MS. PARSONS: Do you know what your TMK is offhand?
Do you own the property where you live?
DIESEL: My TMK? My boyfriend does. We're on Lower
Kula Road. We're at Rice Park. Right across the road from
Rice Park.
MS. PARSONS: Can you get the address and check
what's around there? Maybe something is coming in.
DIESEL: The interesting thing is, the first week
that this happened before I -- when I still thought I had fleas
or something, a friend at work said, You need to talk to my
friend Bonnie, who just the same week had a very similar
problem. We didn't talk for months, but her problem appeared
at the same time and her symptoms matched and she has not been
able to get them to go away. And she can't just use any skin
care products.
One of the things -- I have a five-month log of my
activities. One of the things I noticed is that I used a skin
cleanser one day and I had a reaction and I would use it with
the county water. But I had been using that product and I had
not had a reaction. All of a sudden my face was back to being
really tender. I did not go in with the symptoms on my face
which were really unusual.
So I'm going to test this product, maybe it's the
skin care product, even though it didn't have anything to do
with my body because I only used it on my face. So I tested it
again with my reverse osmosis water, I scrubbed and I really
tried to make this stuff -- see if it was giving me a problem
and it wasn't.
So I have had -- I use the good water, I use a good
product and I have no problem. I use the same product in my
water and I have a problem.
CHAIRMAN RICE: Okay. I'll put this on the agenda
for the next meeting. Mr. Craddick, we need information ready
from staff for that meeting.
MR. CRADDICK: Okay.
CHAIRMAN RICE: Thank you, Diesel.
Tony?
MR. DURSO: Good morning. Thank you, members of
the Board of Water Supply. Thank you for expanding the
opportunity to give public testimony. This is an issue that
came up well after the time that I would have needed to get
this on the agenda for today. I, too, will try to keep it
short.
I do have some written testimony which I will
distribute, but basically I think you folks probably all know
why I'm here. We have had huge number of emergencies on our
Ulupalakua system that have basically made it so that we can't
use areas of our pasture. We have three water meters currently
not in operation because they are too unreliable, and it looks
like we're actually going to have to expand that number. So
it's the same old story.
Our water system is inadequate. We're hoping to
move along. It's my understanding that after the motion that
Jonathan made and Clark seconded last May and was approved by
this board, that it went to planning to improve the system for
that step line and it seems like it stuck there. And I really
would like this to get moving on that.
And one thing I did want to stress is that it's been
going back and forth at the county level with the county
council talking about protecting ag and preserving open space.
There's a lot of concerns expressed that if you improve the
water, it will pave the way for development.
Folks, the bottom line is, if you don't improve the
water symptom to Ulupalakua, it will pave the way for us to go
out of business, and that's actually a sure road to development
than it is if you allow us the opportunity to actually ranch
and to lease land to farmers. So please, with what powers the
board has, if you could see your way to expedite the planning
phase for that and the appropriation for the money for that,
that would be much appreciated.
CHAIRMAN RICE: Please state your name for the
record.
MR. DURSO: I'm sorry. For the record, Tony
Durso, from Ulupalakua Ranch. My apologies.
CHAIRMAN RICE: Tony, am I correct that you have
been out of water or you were experiencing a lot of breaks?
MR. DURSO: We're experiencing a lot of breaks.
The worse thing that happened is two weeks ago the line that
serves our -- one of our primary distribution reservoirs
stopped flowing. And that reservoir went down about 8 feet,
which meant that it was no longer basically usable for
servicing our pastures. We had herd in that area at that time,
had to move the animals out, lost labor time, lost production,
stress on the animals, you name it.
That reservoir has been unable to catch up because
the flow has been so intermittent since then, and so that
pasture remains pretty much out of commission. So it's not
that we have gone to zero, but we have gone down below what we
normally are, which is already reduced percentage of the
supposed flow.
CHAIRMAN RICE: Mr. Starr?
MR. STARR: Mr. Chair, I think the board has been in
agreement that we want to expedite this. Can we put this on an
agenda as soon as possible and get a full report and try to
move it along?
CHAIRMAN RICE: Sure.
MR. NOBRIGA: No objection. Second.
CHAIRMAN RICE: Kent?
MR. HIRANAGA: Mr. Chair, my recollection regarding
this issue is if the ranch had offered to assist the department
in construction of a line, if it was not to a certain size line
they were not willing to cooperate, and we were having concerns
about putting in the larger line because it would provide
capacity for that area beyond what we thought was necessary for
ranching purposes. I don't know what happened after that
point.
MR. DURSO: I can answer that, if you don't mind.
What was agreed to at the May meeting was the step line which,
as I recall, the board said would bring it up to adequate
supply for current use and that that was acceptable to the
ranch, granted the ranch would have preferred the 8 inch or 10
or 12; but it was agreed to at that time to do the step line,
which was, in my recollection, not universally but sort of
unanimously accepted by the main parties concerned.
CHAIRMAN RICE: Okay.
MR. HIRANAGA: Does the department wish to comment?
MR. CRADDICK: We can make a report to the board.
CHAIRMAN RICE: We'll put that on the next agenda
also.
MR. CRADDICK: I can say this, last week we had two
breaks and there was major portions of Kanaio without water.
MR. DURSO: Thank you very much. Again, my
apologies for doing this at the last minute.
CHAIRMAN RICE: I've been hearing stories about
people being without water --
MR. CRADDICK: That's right. That's correct.
CHAIRMAN RICE: Well, that would seem to indicate
that we need to move quickly than slowly on this. Is that his
written testimony?
Any other public testimony? Anything on the agenda
or otherwise? Where is Anthony?
MR. AMARAL: My name is Anthony Amaral. I have a
piece of property up at Waikoa (phonetic) Road and that I have
livestock there, and my grandchildren is in the 4-H.
The waterline going up there is a private system and
the very last -- on the top of the hill, and I try to join the
association and they said that David Craddick, couple of years
back, wrote them a letter that nobody else can join that
association.
Now I have the opportunity to have a meter, I would
like to see something done, like issuing me a meter, then I
have something to offer the association, and I can put up a
bigger tank above my property. Right now they have -- the
association have a tank that the meter water go into that tank,
it's about maybe 18- to 20,000 gallons. Give or take.
On top of the hill they have another 30,000
gallons. And my other two neighbors above me, because that
tank is lower, they have to pump water above their property,
which is another 30,000 gallons. And I'm willing to put up
another tank above my property, 40, or whatever it takes, and
just have this thing resolved.
I talked earlier to Dave and Mike, I thought I was
on the list. Sunday morning I came home from church, I opened
my mail, without even knowing, they just took me off the list.
I don't know what to do. I just came here to get help or
advice. At least guide me in the right way.
There's three individual people in that area,
developer below us who has three meters. He got to go put in
his own system, and there's only like 11 houses over there or
12 or whatever, and I got to put in my own system and the
association got to put in their own system. The road is only
like maybe 8 feet wide going up through there. It's
ridiculous.
So like I say, I don't know if somebody could go up
there, take a look and have some common sense, just have some
common sense, that's only what you need, look at the thing and
maybe we could all come to an agreement.
I went through with the board about a year and a
half ago, this whole trip that I'm going with now. I went to
the trip, I went through one private -- not private, but
another Board of Directors, I did not hear anything for a year
and a half, no letters, no nothing. No nothing. Nothing.
Nothing. And the last -- this past Sunday, that was the last I
heard, again after a year and a half, one letter saying that
I'm taken off the list for my meter.
I don't know if Dave can give the reason why. I'm
pretty sure he have a reason why, or maybe I can understand
better. But like I say, we need somebody that have common
sense. That's all what we need. Don't have to be educated,
just common sense. So that's all I have to say unless Dave
want to say something.
CHAIRMAN RICE: Anthony, one second. Any questions
for Mr. Amaral? Mr. Starr?
MR. STARR: Have you worked out something with the
association or maybe the other people, that everyone up there
would be happy -- you could come back to the board -- that
everyone could kind of together come back to the board with a
suggestion?
MR. AMARAL: I can answer that. When I first moved
up there, I tried to draw the association in the worst way,
because I'm not a rich person. I talked to Dave in a private
meeting about what to do. He wanted me to run an 8-inch line
from the bottom of the road to the top. I told him he was
crazy. I'm not a developer. Only me going get water out that
line, I no need. One-half inch line enough for me.
Then I talked to the association, which their hands
was tied. The reason why their hands was tied and that I found
out after, was because Dave Craddick, about two or three years
ago, I guess when the water shortage and all that trips, all
that politics, say nobody else can hook up to that system. I
cannot understand why nobody else can hook up to the system.
He telling me that it's not done right or anything. He wrote
them a letter saying that nobody else could join the system.
Getting back at that.
Now, only what I'm asking is, I don't have anything
to offer the association. You know what I'm saying? Where I'm
coming from and where they are coming from. Now, if the water
department can put a meter -- and the tank is only like 20 feet
across from my property. I feeling going over there and
drilling one hole and taking water. I tried so hard to do it
legal. You know what I mean? And it ain't working.
So like I said, the tank is right across my
property, and I'm willing to put up another tank above there.
And just that -- I guess that Dave, because he sent that letter
that nobody else can join, lack of water, that's the reason why
the association hands is tied; they cannot let anybody else
draw in the association. I'm not speaking for the association,
I cannot really say that they would even let me draw in the
association even after I get a meter. I cannot speak for
that.
But what I need, I need something where I can offer
them and have better fire protection. Because I have that stem
pipes up there, up on that road, I know for a fact that if you
open that pipes, if you have a little burst of water, then it's
done. How I know that, and not because I'm stealing water, is
because my cousin and my brother works at the fire station at
Kula and they tell me that.
So like we have right up that area right now, I
think we would have maybe 90,000 gallons, give or take a
hundred, of water storage in that area. And I'm willing to put
up another tank, which I would have to because I would not have
any pressure, 40,000 gallon tank or what, you know. So the
problem is that, like I said, because the letter that couple of
years back at that time, I guess the letter was -- he had to do
what he had to do, Dave. So that's only what I have to say.
CHAIRMAN RICE: Thank you, Mr. Amaral. I'm not
aware of a letter being sent to people telling them they are
off the list. I'm looking at a letter that Mike has here.
We're sending letters to people who are -- their names are
being taken off the list?
MR. CRADDICK: Yeah. Ones that can get a meter,
no.
MR. HIRANAGA: I could not hear the answer.
MR. CRADDICK: People that can get a meter now are
off the list, and we didn't want them to say that nobody told
them so we sent a letter out to them.
CHAIRMAN RICE: Mr. Amaral, I think you need to talk
with Mr. Craddick after the meeting. And if we don't get it
resolved, we'll put it on the agenda also.
MR. AMARAL: Thank you.
CHAIRMAN RICE: Sir, you wanted to make some
testimony?
MR. SPENCER: Mark Spencer of Spencer Homes. I
believe one of the agenda items is the evaluation of the
department and the director. I come here cautiously as a
developer and a contractor, we deal with the water department
on a daily basis, and I'm thinking, I hope I don't become the
sacrificial lamb.
Our concern is basically with the engineering
department of the water department. The other segments of the
department seem to work fine. In 27 years we never had a
problem building or with a meter installation. But the
engineering division is tough. We deal with every department
at the county regarding building and the engineering division
is the worst one.
I bulleted three points, one is, can the ordinance
require for a 45-day review policy? And what it states is
construction plans should be reviewed within 45 days. I
believe not only was that their ordinance, that's what they
wanted -- that was good for the county. Well, this never
happens with the water department.
Our last phase, it was about a week shy of seven
months before we got a response. And that was after phone
calls, faxes, letters to David Craddick, to Larry Winters, who
had this project on his desk. I personally met with Larry in
his office one day and used the term, "I'm coming with kneepads
and begging you, when will you looking at this?"
This was three months after it was submitted and his
comment was, "I don't know. I really can't tell you."
I said, "Can you at least give me a ballpark time?"
And he said, "No, because if I tell you that, then
you'll hold me to that later." I walked out of that office
completely confused on where to turn.
My father, Jessie, who is the president and owner,
was really pushing for us to hit him up on this 45-day
approval. The comments we get back from our engineers, who,
again, are in a tough situation because they had to deal with
the water department on numerous projects, they say, Well, it's
not exactly that easy, because even though they may sign off
and say it's approved, it's really not approved.
Because you still have to get inspections, then you
start putting the project in and they come in and make
revisions and you have to change it. So it's actually -- that
interpretation of it is not correct to me. That's not an
approval.
The second one was enforcing standards that are not
yet adopted. There's another subdivision that my brother Doug
owns. That's not us. We're the contractor on the job.
There's a situation where Craddick's office, with Larry
Winters, started requiring some new codes. A new type of
office -- having in the county right away, having concrete
around them. When I -- this was not a code issue, but still
this is what you need to do.
The project developer, my brother Doug and Martin
Luna sent a letter to the board, and I don't know if this is
procedure, but apparently that went through Craddick's office,
Craddick contacted my brother and offered a compromise. And in
that compromise he stated, "The reason why you don't want to go
through appeals is because it's costly, it will cost you time,
it will be better on your behalf if you accept this." Again,
I'm coming here a little bit nervous that I'm bringing these
things up.
The last issue is more of an overall issue. And I'm
the one who, for our company, deals with the water department a
lot. And I guess I want to speak candidly to you guys.
There's a problem in that engineering division; you feel it
when you go in there.
I know they have been looking for engineers, I know
they have a young engineer that was hired, that quit shortly
thereafter. I'm sure he decided this is not a good place to
work. The engineer that I had the most success with, that I
could get return phone calls from, she left that department,
Diane Ariyoshi.
We understand it's the water department's obligation
to enforce the rules. All we're asking is that we have that
same right to be able to follow those rules and to rely upon
them in what we do. And that doesn't seem to be the case right
now. And I'll leave the conclusion to you guys, whether it's
ineptness, whether it's coming from the top down, or whether
it's the fact that David doesn't know what's going on in there,
but something is happening there that is not right.
Again, I would ask that you poll even people that
have left that department that are no longer working there,
poll other developers on the side. Everyone is afraid to bring
this to you guys because we still have to go in there for
another subdivision. We're out there trying to create
affordable housing, our prices had to go up lately for some
other reason, but we're working on another project that we hope
to be extremely affordable.
And we talked to the mayor's office and he asked,
"What keeps you from doing it?" This is one of the issues.
When you look at the amount of money that's put up, that we
have to hold on to, it goes into hundreds of thousands of
dollars when it gets held up by this. I thank you guys.
CHAIRMAN RICE: Questions? Mr. Starr?
MR. STARR: I would thank you for coming to us. We
appreciate it. I would like to ask you to compare the service
that you get from the Maui Department of Water Supply with the
similar service that you would get in other places. Simply
doing business in a number of different municipalities.
MR. SPENCER: We only operate here. I do know that
the quote I told many people is -- you know LUCA, the
Department of Public Works -- you know, there's always issues
you have with certain people, and as a developer we're not
asking to rubber stamp everything, but at least there's a
feeling it's cooperative, there's not a certain power feeling
that comes down. Wastewater is real good to work with.
Planning, it's tough at times, but there still is not this.
Again, I want to reemphasize something. I don't
believe this is throughout the entire department. I've had
dealings with George Tengan -- in fact, when I commented to him
once outside of work that our plans have been there for so
long, that's when we -- actually, I got a call back within a
couple of weeks. And I don't think they actually realize how
long some of their guys have been sitting on these projects.
CHAIRMAN RICE: Questions for Jessie?
MR. SPENCER: I'm Mark.
CHAIRMAN RICE: Mark. I was reading the letter.
Sorry, Mark. Thank you, Mark.
MR. SPENCER: Thank you.
CHAIRMAN RICE: You want to say anything,
Mr. Craddick?
MR. CRADDICK: No, he is somewhat right.
CHAIRMAN RICE: Any other public testimony? Seeing
and hearing none, we're going to close the section of the
meeting for public testimony and move on to Director's Report
02-42. Kaunakakai.
MR. CRADDICK: This is a project that's ongoing
right now at public works and we have gotten a very good price
to upgrade the line to something that would be better for the
area. Upgrading it to a 12 inch for $22,000. So we're asking
for funding to do that.
MR. HELM: Mr. Chair, I move to accept Director's
Report 02-42 for funding for the increase in the water main for
Kaunakakai.
MR. NOBRIGA: Second.
CHAIRMAN RICE: Moved and seconded to approve
director's request for funding. Any discussion? Comments?
Questions? Call the question, all in favor say "aye."
(A chorus of ayes.)
Opposed say "nay."
(None.)
Motion is carried.
We're going to move into Old Business.
Communications 02-26. Mr. Wagner, front and center. I read
the minutes from the last meeting, I thought we were going to
get a report on some issues that were raised by Mr. Hiranaga;
is that right? Go ahead, Mr. Wagner.
NICK WAGNER: I think there was supposed to be a
report, a written decision by corporate counsel. As you
remember, my whole issues -- we have a private roadway lot, the
rules and regulations say that the meter would be put on the
county road, and that's all I'm asking for.
Mr. Craddick wants me to run a 6-inch line to my
property and it's contrary to the rules and regulations, but he
feels that it is a public road. Therefore, the board asked
corporate counsel for their definition.
CHAIRMAN RICE: The motion at the meeting on the
22nd of August -- members of the board, motion was to defer
until the next meeting, providing all the necessary
information, such as any prior agreements, any documentation
that had been done for this subdivision be provided to the
board prior to the meeting so that we may understand and be
able to take some definite action. Seconded. And it was
approved.
And you, Kent, weren't you raising questions about
the subdivision? No? You don't remember?
MR. CRADDICK: I think just how did it get approved.
CHAIRMAN RICE: There were multiple users on one
meter; is that right?
MR. HIRANAGA: Yeah, I guess how the subdivision was
created and how various lots were being allowed to be serviced
by sharing of the meters. That's my recollection.
CHAIRMAN RICE: Mr. Starr?
MR. STARR: Mr. Chairman, I recall, I believe this
was an issue where there was a roadway lot that was -- we were
concerned with the definition of whether it's a private or
public road.
CHAIRMAN RICE: Right.
MR. STARR: My own feeling on this is we should find
a way to allow the applicant to proceed. I think to run a
thousand feet of line to basically allow compliance with
something that's more a technicality than anything else, I
think that's why the board is here, to enable people to utilize
the system. I would request from the chair what would be the
proper action to allow Mr. Wagner to move forward with his
request? What would the motion be? What should we do?
CHAIRMAN RICE: Mr. Craddick?
MR. CRADDICK: Let me offer a suggestion. What I
would say is if he agrees that if he further condominiumized or
subdivides later on and this line gets put in, that's just --
service, individual service for his empty lot. And if you
don't mind, you are now going to be based with all the others
in similar situations, of which there are quite a few.
Making the problem for the staff of not being able
to associate the meter with the lot when they go out and read
them. If you feel that's all right to make that problem for
the staff, then go ahead.
MR. STARR: Mr. Chair, I don't think convenience for
staff should be a compelling issue when we talk about forcing
numerous members of the public to spend hundreds of thousands
of dollars.
CHAIRMAN RICE: Let me make sure everybody
understands the issue. Mr. Wagner, help me if I'm wrong. The
issue is that you want the meter to be located on the -- at the
adjacent -- at the point where the property line is closest to
the public walk. You are willing to put in a line from your
property down to that meter; is that correct?
What I think -- the initial suggestion by
Mr. Craddick was that if we were to allow that subject to that
property not being subdivided, that meter may not be used for
you to subdivide that property. That may be one suggestion.
The issue came up because Mr. Craddick wanted you to put the
line into your property and place the water meter on your
property; right? Is that correct?
MR. WAGNER: He wanted me to put the line on my
property, yes.
CHAIRMAN RICE: But in this case, you are still
going to have to bring a line down to the meter; right? You
are just not going to put in the size of line that Mr. Craddick
would have required of you?
MR. WAGNER: If I'm required -- in order to put my
second farm dwelling to have that meter, I'm willing to do
that. You know what I'm saying? We kind of opened up a can of
worms here the last time, I don't know if I want to go there.
CHAIRMAN RICE: Yes, Kent. You are reading the
minutes; aren't you? I wish the board members would read the
minutes from the last meeting --
MR. HIRANAGA: I think the issue was definition of a
private road versus a public road. I think the department took
the position that because many people use the road, it's
considered public. And I did not particularly agree with that
position.
I think there needs to be proof that that's a public
road, not assume it's a public road just because there's
uncontrolled use of it. I think that was the basis of the
initial issue of it. If it is a private road, then he can put
his meter on the closest public road. Don't assume that
because many people use the road, that it's public.
But then we entered into another issue, being
sharing of meters in that subdivision. I think there were two
issues we were looking at, if my recollection is correct. So
we were hoping to get a definition of what is a private road
and what is a public road.
CHAIRMAN RICE: Mr. Starr?
MR. STARR: I think it's really a third issue; I
know this is getting more complex. But if this is the
recurring theme, that in the past we had allowed people to
locate a meter on their property in a place most convenient to
them, which is generally where the system was adequate, and
there was a change in policy by the department, I'm not exactly
sure when that was, but that change in policy was that the
meter had to be located at the place --
MR. CRADDICK: On their property.
MR. STARR: Yeah. It had to be on their property
and -- it had to be on that property. It couldn't be on
another property they had access to. Is that the statement?
MR. CRADDICK: That's right.
MR. STARR: I think that's what is coming into play
here. I, for one, feel people should be able to locate the
meter where it's the least expensive and convenient to them as
long as they have a legal right to place it there. It may not
be as convenient to the department, but it can save the
applicants a lot of humbug.
I'm not sure how that ties into what we're doing
right now. It seems to be getting a step more complicated if
what I just heard is what I think it is.
CHAIRMAN RICE: Mr. Kushi, as I'm reading the
minutes from the last meeting, I need you to reaffirm this,
that under our current rules, a meter could be located
off-site.
MR. KUSHI: Mr. Chairman, your current rules, and I
believe it's Rule 3-5G as in George, entitled "Location of
Service Lateral or Main." My reading of that rule, and the
board has struggled with this for quite a while, is that -- the
general scenario is that the meters to be located on -- a
public meter is to be located on property fronting the subject
parcel.
And in the past, I believe the board has granted
meters to the point of adequacy, and then the private owner
that lives a mile down -- and distributes his line down.
However, I believe the board's policy has been now,
that the board and the department is to have the meter located
fronting the property -- you cannot put a meter on a private
line. You understand? So the line that comes down fronting
the property should be our line, the department's line.
However, the rule does provide that -- it just says
the meter shall be installed along the property boundary or
where reasonably feasible. I believe we struggled with that
interpretation.
CHAIRMAN RICE: Yes, Ginny. Thank you, Mr. Kushi.
MR. KUSHI: In addition, I owe you an opinion on the
private road. There was a recent Hawaii Supreme Court case
revisiting the issue of a private road. It's entitled Winbow
versus Dowman (phonetic), which arises from the City and County
of Honolulu. It was just issued in June of this year. So I'm
looking at that, but my initial reading is that it doesn't
change the law, in essence, of a private or public road.
That being the case, I owe you a written opinion.
But I would say right now, in this case, this is a private road
opened to the public. The council -- the county has never
accepted ownership of this road. In fact, the whole
subdivision didn't go through the subdivision process. It was
a result of a court partition case back in the '70s or early
'80s.
CHAIRMAN RICE: Okay.
MR. KUSHI: That complicates the situation further.
CHAIRMAN RICE: That being said, the issue would
revert to your interpretation of a location of a meter where it
was convenient -- or what was the language you used there?
MR. KUSHI: The meter shall be installed along the
property boundary or where reasonably feasible unless the
department, because of operating necessity, installs the meter
elsewhere. So I believe it's the board's jurisdiction to
install the meter -- to allow installation of a meter anyplace
else but the property boundary. The general rule is along the
property boundary.
CHAIRMAN RICE: Ginny?
MS. PARSONS: He was answering the question.
Generally along the property boundary, in such cases as where
we might have to put it otherwise. Are we in agreement that's
where we would like to have them, on the property boundary?
MR. HIRANAGA: I can't hear you.
MS. PARSONS: Are we in agreement that that's where
we would like to have them?
MR. STARR: My belief is that's what is preferable,
but I hate to make someone expend an unusual amount of money
for our convenience. What I would like to request -- I'm
confused now what Mr. Wagner wants at this point. Could he
clarify as of right now what he is asking us to do? Because it
sounded to me like that changed. Could he get the mic?
MR. WAGNER: I want the Department of Water to sign
off on my building permit application for my second farm
dwelling. How we do that -- and with the least expense to me
as far as running a 6-inch line on my property, and knowing
that there is in the rules and regulations this point where I
can have it on the public roadway. That's it in a nutshell.
From there, it's digressed quite a bit. I can go into that.
CHAIRMAN RICE: I don't think what Mr. Kushi read
says that the meter can be on the public roadway. I think it's
an opportunity for the board to authorize that. But it's not
that clear.
MR. WAGNER: Right. It would be on the private
roadway lot next to Kauhikoa Road. So it's not on the public
roadway. It's on the private roadway lot, at Kauhikoa.
CHAIRMAN RICE: Do you understand?
MR. STARR: To clarify my understanding, the
applicant is requesting that a meter be installed on the
private roadway lot adjacent to Kauhikoa Road?
MR. WAGNER: No, I'm not requesting that. The
department is requesting that I have my own meter now. That's
the request, for my own meter. They are saying I need to
install that.
MR. STARR: Right now you share a meter; is that
correct?
MR. WAGNER: Here we go, yes. That was brought up
at the last meeting, remember? And then -- so this meeting I
don't want to say much.
MR. HIRANAGA: Peter?
CHAIRMAN RICE: Yes, Kent.
MR. HIRANAGA: If you were granted a separate water
meter, you would no longer be connected to the meter that you
are sharing water with, and would that allow him to get his
second dwelling, David, if he has his own meter and giving up
sharing of the other meter?
MR. CRADDICK: Assuming he was within the fixed
meter, yes.
MR. HIRANAGA: So the meter, the proposed meter
location would be on a public road?
MR. CRADDICK: That's, I think, what he is wanting,
in the alternative to us just signing on the building permit.
MR. HIRANAGA: Is that Kauhikoa Road?
MR. WAGNER: No, it would be off Kauhikoa. On the
private roadway.
MR. HIRANAGA: It doesn't have a name?
MR. WAGNER: It's called -- Kane Road is the private
roadway lot. It borders Kauhikoa Road.
MR. HIRANAGA: I have a concern. If we're going to
allow off-site meters, I would prefer to have it on the public
road. Because are you going to be making the meter readers go
down private roadways looking for meters? I don't know how
much further you would have to extend your private line.
There has to be some logic and consistency for
operation of this -- if the road is deemed private, and then
put the meter on the closest public road, not what's most
convenient to the user.
CHAIRMAN RICE: Mr. Kushi?
MR. KUSHI: The board can hear me and maybe to
clarify the issue from now and in the future. There is an
issue about public versus private roadways. However, I believe
from the board's standpoint, it's the placement of the meter
which connects the main line.
If it's a public main line, which is the
department's responsibility, we can have main lines in private
roads as long as we have the proper easements. What we don't
want and can't do is put meters on private lines. So whether
it's a public or private road, that is not the issue. It's the
ownership and access to the main line.
CHAIRMAN RICE: If we put the meter on the public
road, he then has to -- if we approve it, he has to then extend
that to his property?
MR. KUSHI: It goes against the board's -- the
department's general rule. If you need to review that. You
made exceptions in the past.
CHAIRMAN RICE: That's what I hate.
MS. PARSONS: If he obtains an easement for where he
would like to have the meter situated, would that suffice? The
argument of not wanting to go around checking meters doesn't --
CHAIRMAN RICE: But then I think what happens is, he
gets the easement and we require him to put in a line from the
public road to his property and according to our standards,
which might be expensive. And I think what Mr. Wagner wants to
do is put the meter on the public road and put a less than
department standard line to his property. That's where we -- I
think why we're at this point. Mr. Starr?
MR. STARR: I don't think we're at that point yet.
I think that there's several questions here. The first
question here is, what I understand Mr. Wagner is requesting
today is the ability to build another dwelling unit without
getting a new meter at all. And that's something for which I'm
not particularly in favor.
The question is, what do we do to deal with that
issue? Does that require action on our part? And then if we
deny that, then the issue will come up about if he's able to
get a meter, where it would be located. To my understanding,
he is -- right now he is not asking for a new meter; he is
asking for the ability to construct another dwelling without
having any meter at all.
CHAIRMAN RICE: Is that true, Mr. Wagner? Let's cut
through all the bullshit here.
MR. WAGNER: I want a permit for my second farm
dwelling. Mr. Craddick says okay, you have to install a meter
and we want it on your property. And that's what started
this. The rules and regulations say it doesn't go on a private
roadway lot. So I came in here requesting that the water meter
be put next to Kauhikoa Road.
And I'm assuming all the time that I did need this
meter, I didn't question that. I didn't question the fact that
he wanted me to now put in my own meter. I was just
questioning where to put that. After finding this new rules
and regulations -- that's what brought us here. And that was
my first request and maybe I should just stick with that one.
CHAIRMAN RICE: Mr. Craddick -- or Kent.
MR. HIRANAGA: I was going to make a motion.
CHAIRMAN RICE: Let Mr. Craddick speak first then.
MR. CRADDICK: What Ed Kushi said, this was a court
ordered partition. The subdivision has never met the
subdivision requirements. They never met them. That includes
fire flow as well as service.
Now, we can't offer the 50 percent reimbursement
because now in his situation he is not doing a subdivision.
And we have also allowed meters off of Kokomo Road for the
properties that are adjacent to Kokomo Road. We allowed them
to get a meter. There may even be one or two in the back that
have a meter on Kokomo Road that have run through. So there's
a lot of things we have done wrong.
In this particular situation, are we going to
continue to do wrong and create more Palmer and Crouse
situations out there, or are we going to finally put our foot
down and correct the situation? And I'll grant you that the
expense is rather high for him.
So the issue should be, how do you reduce the
expense for him but do it right, not put the meter out
somewhere in Timbuktu half a mile away where there's no fire
protection for the house or anything like that. I mean, that's
totally waiving your responsibility. And it makes a real
problem for the staff and it's not just to read the meter.
CHAIRMAN RICE: Kent?
MR. HIRANAGA: I would like to make a motion to deny
this request for a waiver in order to obtain a building permit.
MR. NOBRIGA: Second.
CHAIRMAN RICE: It's been moved and seconded to deny
the request for a waiver in order to obtain a building permit.
Discussion? All in favor say "aye."
(A chorus of ayes.)
Opposed say "nay."
(None.)
Motion carries. Okay.
CHAIRMAN RICE: Mr. Wagner?
MR. WAGNER: Deny the waiver of what?
CHAIRMAN RICE: You are asking for a waiver so you
can get a building permit. You are asking us to waive the
requirements.
MR. HIRANAGA: Fixture.
MR. WAGNER: No, I never wanted a waiver. Actually,
I want the department to follow the rules and regulations,
stating that the meter not be put -- that a 6-inch line be put
in a private roadway lot.
MR. HIRANAGA: That's step 2. Your request was to
get a building permit without having to install it.
CHAIRMAN RICE: That's what you said.
MR. HIRANAGA: That's been denied. Now there's step
2.
MR. WAGNER: Step 1, waiver of having to have my own
meter.
MR. HIRANAGA: Meter to get a building permit
without having to get a meter. That's denied.
MR. WAGNER: That's cool. Step 2.
MS. PARSONS: It's placement where you would like
the meter. Where specifically, Mr. Wagner, would you like the
meter to be? You just tell me, on your lot?
MR. WAGNER: At the intersection.
MS. PARSONS: Which intersection?
MR. WAGNER: Kauhikoa and Kane Road.
CHAIRMAN RICE: But you are not objecting to that?
MR. CRADDICK: Yes, he is.
MR. WAGNER: Yes.
CHAIRMAN RICE: I thought you didn't want it in some
Timbuktu.
MR. CRADDICK: That's Timbuktu. That's a half mile
away from the property.
MS. PARSONS: How are these other lots being
serviced?
MR. CRADDICK: The ones adjacent to Kokomo Road are
served off of Kokomo Road. A lot of them are being serviced
off the two meters the subdivision has. They are already --
MS. PARSONS: I think to keep from having Palmer and
Crouse issues coming up again, getting his own meter and
putting it in, if this makes sense for it to be here, we're
eliminating the Palmer and Crouse issues. So he has a meter,
he's working --
MR. CRADDICK: You are creating more --
MS. PARSONS: Why?
MR. CRADDICK: Because what does he have to do to
get his easement? Does he have to --
MS. PARSONS: He has to get an easement, that's his
problem.
MR. CRADDICK: That's what should have happened in
the Crouse and Palmer issues.
MS. PARSONS: Let's not deal with that.
MR. CRADDICK: I know you don't want to deal with
that, that's the real problem. One at a time.
MS. PARSONS: If Nick brings the easement in without
giving water away, he knows he can't do that because that's
illegal. There's no reason why we can't provide for him.
That's the way it should be, instead of making it more
difficult.
MR. STARR: Make a motion.
MS. PARSONS: I make a motion that Mr. Wagner
provide us with an easement for placement of the water meter,
with no strings attached, nothing illegal attached to it, it's
a clean easement and that the Department of Water, supply
Mr. Wagner with a meter.
MR. STARR: At the point adjacent to Kauhikoa.
MS. PARSONS: Right.
MR. STARR: And I second that.
CHAIRMAN RICE: Discussion? Yes, Clark.
MR. HASHIMOTO: What happened to all this -- I
guess, is there a waiver for fire protection? What about fire
protection?
MR. CRADDICK: There won't be any fire protection
whatsoever.
MS. PARSONS: By the time the fire department gets
here, if he does not have sprinklers, he is dead meat anyway.
Let's be honest, where we are --
MR. STARR: I suggest we have a hold harmless
indemnification, hold harmless clause.
MR. CRADDICK: Plus insurance. What's the plus?
Hold harmless plus?
MS. PARSONS: Hold harmless clause. Provide him
with a hold harmless clause that we used in the past, that
we're not responsible if your house burns down.
MR. CRADDICK: The hold harmless clause is to make
it so he covers the adjacent houses when they burn down, and
corp counsel has previously told you that hold harmless is a
road map to the Board of Water Supply when you make them sign
that if there's no -- which is insurance, which is where we
were with Dante's.
MR. STARR: I said indemnification also. I would
like to offer that as an amendment, that hold harmless clause
plus indemnification, and to the satisfaction of corp counsel,
be included in this.
CHAIRMAN RICE: Is there a second to that
amendment? Who made the motion?
MS. PARSONS: I made the motion.
CHAIRMAN RICE: The original motion.
MS. PARSONS: Second.
CHAIRMAN RICE: We need to repeat the motion.
MS. PARSONS: I made the motion that if Mr. Wagner
will bring us an easement that is clean, with no strings
attached, no selling of water, that where he wants this meter
placed, that the department will bring -- David's biggest
concern was the easement situation in the Palmer and Crouse --
that there is no water selling or anything else. And he tells
us that he has got the easement and for us to bring the meter
in and place the meter in for his use.
In addition to that, Mr. Starr asked that we have a
hold harmless indemnification clause with insurance. You want
to make that insurance a million dollars?
MR. STARR: I would like to ask counsel if there's a
standard of what it is.
MR. KUSHI: I'm sorry, I was talking to the
director; I did not follow your discussion.
MS. PARSONS: For an insurance policy, is there a
standard we have been using in the past? The amount for
indemnification, is it a million?
MR. CRADDICK: This will be the first time we do
something like this to require insurance.
CHAIRMAN RICE: You understand the motion, Kent?
MR. HIRANAGA: Are you specifically saying at the
corner of Kane and Kauhikoa?
MS. PARSONS: Yes.
MR. STARR: We're waiting for the second.
CHAIRMAN RICE: Ginny seconded it. Mr. Kushi?
MR. KUSHI: I would like to make a point when you
discuss the motion.
CHAIRMAN RICE: We're in discussion.
MR. KUSHI: You need the second.
CHAIRMAN RICE: Ginny seconded.
MR. KUSHI: You vote on the amendment.
CHAIRMAN RICE: We're in discussion.
MR. KUSHI: Mr. Chair, just for the board's
clarification and the department's clarification, what you are
doing is you're allowing a meter -- and I'm assuming that this
property is in the Kula priority list situation. So I believe
this is subdivided lots. He needs to apply for a meter. You
are not just granting a meter; he needs to apply for the meter
within 60 days of last week.
Then as far as improvements are concerned, you are
deviating from the rule. Because of the circumstances, you are
allowing a meter to be placed off premises with a private line,
private line coming down to this property with the necessary
easements through that -- I want to make sure that the
department understands that.
MR. CRADDICK: We understand.
CHAIRMAN RICE: Kent?
MR. HIRANAGA: Clarification on the rule. Was it on
the property line or reasonably feasible?
MR. KUSHI: The rule just said all meters shall be
installed along the property boundary or wherever feasible. In
this case, you are making an exception to the property
boundary. And from where the meter is installed to his
property boundary, that's a private line. You have no
responsibility to get in there.
MR. HIRANAGA: I don't think it's contrary to the
rule, where we believe it's reasonably feasible. Also -- we're
in discussion?
CHAIRMAN RICE: Yeah.
MR. HIRANAGA: How is the easement within the
private roadway lot or outside of the private roadway lot? He
is going to obtain easements from lots 120, 119, and 118? Or
108 and 109? Is the line going to be outside of the private
roadway?
CHAIRMAN RICE: He is going to have to obtain
whatever easements are necessary, as I understand the motion,
to get the water from the meter to his property.
MR. HIRANAGA: I would assume it would be difficult
to get an easement on a private roadway, because you have to
determine who the owners are first.
CHAIRMAN RICE: Well, that's the -- the onus is on
the applicant at this point. The way the motion reads at this
point.
MR. HIRANAGA: I guess, do we need to amend the
motion saying we're not granting him a meter, but we're
allowing him if he qualifies for a meter?
MR. KUSHI: Mr. Chair, I would state the
understanding is, if he complies with the rules as just
amended, the department will issue a meter. And the board has
stated its intentions to allow a meter to be placed not on the
boundary. If he does not apply for a meter, then he goes on a
priority list.
CHAIRMAN RICE: That's an important clarification.
We're not giving Mr. Wagner a meter. The only thing we're
doing is allowing -- if he qualifies for a meter, we're
allowing it to be on that road subject to the easements and the
hold harmless and the insurance provisions of the amended
motion. Does everyone understand that? Mr. Starr, you want to
make an amendment?
MR. STARR: I just want to mention that this is the
way the department had been operating for many, many years
until recently. It was recently where the clause -- where we
had been demanding that the meter be on site.
CHAIRMAN RICE: In regards to that point, I think we
have a policy and procedures committee, and I made that note,
so hopefully they made the same note and they will add that to
their investigation before the report. I think, again, I want
to stress, it's important to acknowledge that we're not giving
Mr. Wagner a meter.
MR. STARR: He is to be treated as anyone else with
the exception that --
CHAIRMAN RICE: The location.
MR. STARR: -- the physical location.
MR. KUSHI: And for the department's clarification,
this is on a case-by-case basis.
CHAIRMAN RICE: That's correct.
MR. NOBRIGA: Discussion.
CHAIRMAN RICE: Discussion, Kent still.
MR. HIRANAGA: Just a personal opinion. I think
when we have had these subdivisions created in the past, that
were substandard as far as infrastructure, I don't believe, in
4 my opinion, that we should be forcing private individuals who
are owners of these subdivisions to bring the system up to
standard.
I think we should identify these subdivisions and
schedule them, whether it's within the next five years or the
next ten years or the next two years. The department should be
working to bring these up to standard and not make the
individuals. Because he wants a meter, you have to put in an
8-inch line. I don't think that's appropriate. Whether it
takes us ten years, we should be scheduling these things for
upgrade.
CHAIRMAN RICE: The chair would like to make a
comment. I need a clarification there, because in the event
that the subdivision opted to put in a private water system and
we're approved and they want public water, they want water from
us. They, at their expense, have to upgrade the system. In
the event that it's a subdivision that has public water, I
would agree with it. You want to say something, Mr. Nobriga?
MR. NOBRIGA: I am still going to remain with my
original vote on the topic. What I see here is a situation
where a large piece of property was expanded and 11, 12 more
lots was put into place by either the courts or whatever, or
the people already living there, which is fine, but we're not
helping our situation by trying to move again for waivers.
The situation could come up and face us again
anywhere on the island where we have a big piece of property,
somebody putting in a T and open up all these lots. Are we
really sure we are doing what we want to do? That's all.
CHAIRMAN RICE: I don't think that -- the sharing of
meters, which Mr. Wagner is sorry that he brought up, is not
allowed, I don't believe. And I don't think anyone allowed
it. It's something they did. That may result in a different
action by this board. That's not the request that's before us,
I don't think.
MR. KUSHI: Last comment, Mr. Chair, just to address
the board members of the previous concerns. And it is alarming
if you didn't know the history. There might be a few of these
things out there, these partition subdivisions.
But when this happened it was like 20, 30 years ago
that the court system on partition cases just said that if the
court decree is the subdivision decree, they bypassed county
rules and regulations. About 15 -- or 10 or 15 years ago,
maybe longer, they amended the HRS to say that even with the
partition case you still have to go to the county. So these
are kind of old prehistoric partition cases. So hopefully this
does not come up before you again.
CHAIRMAN RICE: Yes, Clark.
MR. HASHIMOTO: If we grant this application of
water meter, we're also saying that we're waiving fire
protection requirements?
CHAIRMAN RICE: We're not granting a water meter.
All we're doing is we're voting to allow the meter once he
qualifies for a meter to be put in a certain location. That's
all we're voting on.
MR. HASHIMOTO: Okay.
CHAIRMAN RICE: I want it to be clear.
MR. HASHIMOTO: On the director's report, there's a
denial of fire protection waiver.
CHAIRMAN RICE: We're not voting on that, that's not
the motion.
MR. CRADDICK: No, you are. Because if you are
saying you'll take a hold harmless, that's waiving the fire
requirements. So you are doing that.
CHAIRMAN RICE: We have a motion on the floor.
MR. HIRANAGA: My feeling is, if the individual
wants to take the risk of having inadequate fire protection,
that's his personal decision. As long as the county is
protected from any type of liability. They choose to live out
in an ag area that's not being serviced by urban services,
that's his decision.
CHAIRMAN RICE: Are you finished with it?
MR. NOBRIGA: Yes.
CHAIRMAN RICE: We're going to vote on the amendment
first, which is the requirements for the hold harmless and the
insurance as recommended by Mr. Starr. All in favor say "aye."
(A chorus of ayes.)
Opposed say "nay."
(None.)
Motion is carried.
Now the motion. All in favor say "aye."
(A chorus of ayes.)
Opposed say "nay."
Okay, we need a roll call.
Mr. Starr?
MR. STARR: Aye.
CHAIRMAN RICE: Ginny?
MS. PARSONS: Aye.
CHAIRMAN RICE: Mike?
MR. NOBRIGA: No.
CHAIRMAN RICE: Adolf?
MR. HELM: Aye.
CHAIRMAN RICE: Clark?
MR. HASHIMOTO: No.
CHAIRMAN RICE: Kent?
MR. HIRANAGA: Aye.
CHAIRMAN RICE: Chair votes aye. Motion carries.
That's it.
MR. WAGNER: As far as the fire protection, it's the
second structure on the property; fire protection isn't
required until the third structure. I have a letter dated here
May 17th from the water supply saying that the water system --
to provide adequate fire protection, I'm exempt from that.
MR. NOBRIGA: May we have a little recess?
CHAIRMAN RICE: We'll take a one-minute recess.
(A recess was taken.)
CHAIRMAN RICE: We're back in order. We're on Old
Business B, decision, acceptance, rejection of Final
Supplemental Environmental Impact Statement for the East Maui
Water Development Plan. We have testimony from Jeffrey
Parker. Mr. Parker?
MR. STARR: Could he get the microphone?
MR. PARKER: Good morning. Is this a three-minute
testimony?
CHAIRMAN RICE: Yes, please.
MR. PARKER: I'm representing my company Tropical
Orchid Farm, Incorporated. Two years ago several of us went to
the meeting in Pukalani where the BWS hired Mink & Yuen to do
the SEIS. We felt that Mink & Yuen would be incapable of doing
an objective EIS.
We also suggested hiring additional hydrologists so
there would be a diversity of views in the SEIS. The board
declined our suggestion and now the results are in and we were
correct. This is a fatally flawed document that will not be
able to withstand judicial review. In my 20 years of
involvement with EIS cases, this is the worst EIS I have ever
seen.
Could I ask for a show of hands from the board
members as to which of you have read all of the comment
letters?
CHAIRMAN RICE: Mr. Parker, you are here to testify.
MR. PARKER: I guess the record will show that no
one read the comment letters. Because if you did read them,
you would know this SEIS is doomed once it gets into court. We
don't have time to get into all of the many fatal flaws but a
few of the real problems.
As part of the original lawsuit, there was a court
order issued, which all the parties agreed on, which spelled
out a testing protocol. It stipulated the test bore size. And
through this court order, a monitoring well was to be drilled
as part of the SEIS, which is not a production sized well and
which does not have production sized pumps. And BWS did a
production well. I don't think a judge in court will feel very
good about that.
Also, it was agreed upon a test protocol, and that
William Myers, from the USGS, would design that protocol, and
everyone agreed on it. This is the letter from William Myers
that was put in about the SEIS.
Just to quote shortly from it, It would appear from
the information presented on page 42 of the SEIS that the
protocol followed while drilling the monitor well was not that
which was recommended. The video information is not remotely
the same thing as a log of morning water level in the well as
it was being drilled. Which is one of his key points.
In conclusion, I believe that the information
presented in the SEIS falls considerably short, providing the
information needed to resolve the issue with regard to
groundwater occurrence in the Haiku area.
So these are things that the board agreed with, with
the plaintiffs on and which were not done. And so it's
possible that the other issues may not even be reviewed. The
SEIS may be thrown out on those two matters alone.
Another major issue for me is the pipeline size. We
now learn that the pipeline can carry up to 30 MGD; yet the
project described in the SEIS develops only 10 MGD. This
amounts to segmenting; in other words, splitting the project up
in order to avoid studying the entire project. The EIS rules
are very clear about this. A project must be studied in its
entirety.
We're concerned that you'll simply add on more and
more wells to fill up the 30 MGD, and that has not been studied
in this EIS. That's a fatal flaw that will get this thrown
right out of court.
I requested to be a consulting party in this EIS
process and I'm sure you are aware that no one has consulted
with me or with any of the other parties who are critical of
this project.
Another real critical flaw in this document is the
absence of specifics, such as tax key numbers for where these
wells are going to be located or where this pipeline is going
to run. And this is a clear violation of EIS rules. You have
to have all the information so that you can make an informed
decision.
Other alternatives. In my comment letter, I said in
Section 12-14, alternatives to the proposed action, possible
sources of water are Waihe'e, Spreckels -- and North Waihe'e
ditch. The one constraint given was that the Wailuku
Agribusiness depends on that water for irrigation. Now we know
the entire water system is for sale. That EIS is not
up-to-date on that matter.
It's clear that there are so many faulty issues with
this document that a court case would likely go on for years.
And those of us that are critical of the project are prepared
to go on to the State Supreme Court, of course. And so I'm
just wondering if perhaps a more serious look could be taken at
some of these other alternatives that are available now.
I guess I just don't understand when Mr. Craddick
says this document is bulletproof, is he talking about rubber
bullets? I would strongly recommend that you not accept this
SEIS in its present condition. Thank you.
CHAIRMAN RICE: Thank you. Any questions for
Mr. Parker? Ms. Parsons?
MS. PARSONS: Thank you, Mr. Parker, for your
information and for your submission to the SEIS, could you
state for the record your educational background and your
employment history, please?
MR. PARKER: Well, yes. I never finished college.
I've been in a very innovative field of agriculture for 25
years. I'm one of the top companies in the United States in
the niche that I'm in, which is rare and endangered orchid
species. I guess you would say I'm self-educated in that
regard.
CHAIRMAN RICE: Thank you. Any other questions for
Mr. Parker? Mr. Starr?
MR. STARR: Mr. Parker, I know you've been involved
with this since, I believe, the first EIS. What would you say
the likelihood is that this will indeed be challenged?
MR. PARKER: Well, that is fully underway at this
time; fortunately a lot of good people have come forward to
support that challenge financially and otherwise.
MR. STARR: How do you rate the response to the
comments made by Attorney Hall, which I believe -- who I
believe represents the folks who are currently challenging this
EIS?
MR. PARKER: How would I rate his comments?
MR. STARR: No. The comments made -- well, yeah,
give me your comments on his comments and on our responses to
them.
MR. PARKER: I think the entire community and this
board is very fortunate to have Mr. Hall, because he actually
does that enormous amount of legwork to come up with those
issues. The replies to his comments or let's say the reply to
my own comments, even, there really -- they are very trite and
short replies that really say nothing.
And also I kind of offended that Mr. Craddick --
actually, I think it's Mink & Yuen that write the responses but
Mr. Craddick signs it. It goes down my eight-page comment
letter and it picks and chooses which of my comments it wants
to respond to and others just completely skips.
MR. STARR: Was there another issue regarding
community involvement? Do you have any comments regarding
that?
MR. PARKER: Could you be more specific on that?
MR. STARR: I know one of the comments that Mr. Hall
raised was that the community -- he felt should have been
allowed to participate in the discussions somehow, that that
was part of -- and he feels that that didn't occur. Do you
have any comments on that?
MR. PARKER: Well, many of us requested to be
so-called "consulting parties," but we were never consulted
with. So I can answer it that way.
I might also mention that meeting in Haiku a couple
of months ago, that was a very strange meeting because it was
a -- it's kind of hard to understand, but that was a meeting to
gather comments on the preparation notice which actually was an
event that happened a year before. And I think it was you that
came to that meeting that day with the final EIS.
And to us this just seemed outrageous, that we would
be going back to reconstruct this public comments from
something that happened a year ago that's supposed to have
bearing on the final EIS, when, in fact, the final EIS itself
is finished.
MR. STARR: I would like to comment, I did not have
a final EIS. The board members had been issued copies of a
draft EIS which neither I nor anyone else made available to the
public.
MR. PARKER: Excuse me, sorry.
MS. PARSONS: I was going to ask Mr. Parker, did you
see a copy of this?
MR. PARKER: No, it was a draft, I guess.
MS. PARSONS: Did you see a copy of the draft?
MR. PARKER: Jonathan, would you answer her on
that?
MS. PARSONS: No, wait a minute. I don't want
Mr. Starr to answer me. I want to know, did you see a copy of
this draft EIS?
MR. PARKER: I saw a thick booklet.
MS. PARSONS: You saw that. Where did you see
that? Don't talk to Jonathan about this. I want to know where
you saw this.
MR. PARKER: Well, I think if you go back and look
at the record --
MS. PARSONS: No, no, no. Don't do this. You've
seen this. Where did you see this?
MR. PARKER: He shows this right there in his
testimony.
MS. PARSONS: He shows this in his testimony?
MR. PARKER: He says it's private and I can't show
the contents to any of you, but it is finished.
MS. PARSONS: Thank you.
CHAIRMAN RICE: Any other questions for Mr. Parker?
Thank you, Mr. Parker.
MR. PARKER: Thank you.
CHAIRMAN RICE: Board members? I did want to say
one thing, at our last meeting I believe we voted to engage
Mr. Matsubara -- I keep saying his name incorrectly -- he is
not available to provide that service to us.
Mr. Kushi, could you elaborate on that for me? I
have not spoken to him, I just want to make the board members
aware of that situation.
MR. KUSHI: Mr. Chair, I did speak with Mr. Ben
Matsubara, the legal advisor to Mink & Yuen. He is not
available to do any further work in viewing the final SEIS. He
did mention that he has looked at it, he has -- he has advised
the consultants in the final document. However, he is not
available.
CHAIRMAN RICE: Thank you, Mr. Starr.
MR. STARR: I made comments before and I want to be
consistent with them, that I don't really feel that I have the
confidence in this document as it stands today that it will be
successful. I believe that if we do pass it, there's a very
good chance it will be held up by the court for years or
decades.
And so I really feel that we should at this point
take the time to look at it carefully and correct any possible
omissions or flaws and those that especially relate to our
response to the letter of Attorney Hall, who is, as I
understand it, the lead counsel for the opposition.
And that responses to Mr. Hall were made by Director
Craddick without input from the board. I don't know if that
was input from Mink & Yuen on that. But I certainly do not
feel confident particularly in those responses and several
other areas.
It's my belief that we should have our own counsel
and it should be someone who is really knowledgeable in these
areas and will provide us with the continuity and the ability
to research it. Which I don't feel we have now.
Although we have excellent representation by corp
counsel and deputy corp counsel and the man sitting here with
us is an excellent attorney, and I have no qualms or problems,
but I don't think he has the time to spend with it or the
ability to do whatever research may be necessary.
And also we do have a history of discontinuity where
several -- I don't know if it's four or six other deputy corp
counsels have dealt with this issue in litigation over the last
11 years. And I don't really believe that the people who are
there now will necessarily be there when the thing goes to
trial or goes through the process.
So I would like to once again request that we look
at this thing and take great care in making sure the document
that we do ultimately submit is the best that we're capable of
submitting, and it does include comments from members of the
community who have asked to be part of the process. And to my
belief so far --
CHAIRMAN RICE: Thank you, Mr. Starr. Mr. Nobriga?
MR. NOBRIGA: Question about -- in our packets,
there's a page 74, handwritten notes. I need to know if this
is suggested amendments to the SEIS.
MR. CRADDICK: Yes, that's correct. Mink & Yuen met
with the OEQC and these recommendations were made by OEQC, and
those are in -- the final letters that's submitted to OEQC
should be -- on page 73 there's a letter in writing to back up
Mr. Mink's statements at the previous meeting.
CHAIRMAN RICE: Anybody else? Is that acceptable,
Mr. Nobriga?
MR. NOBRIGA: Yeah.
MR. HIRANAGA: I have a question.
CHAIRMAN RICE: Yes, Kent.
MR. HIRANAGA: The attorney retained by Mink & Yuen,
why he is no longer available, is it because he has a personal
illness, or there's a conflict of interest, or he no longer
wishes to provide service to the Department of Water?
To say "I'm no longer available," I find that rather
puzzling. He has been working on this project, it's near
completion and he can't complete it? I guess I'm looking for a
more detailed reason why he is denying our request.
CHAIRMAN RICE: I don't know. After our last
meeting I was informed that he was not willing to do the work.
So I asked Mr. Kushi to call him personally, because as
Mr. Kushi said, he has known him, so I thought maybe there was
a personal appeal, if necessary. That's all I know.
MR. HIRANAGA: It's not he is no longer available;
he just doesn't want to do the work?
MR. KUSHI: I'll respond in two ways. Ben
Matsubara, as the consultant to Mink & Yuen, feels that he has
completed his task as consultant to Mink & Yuen; secondly, I
guess as a personal matter he doesn't want to deal with this
anymore, regardless of the contract between Mink & Yuen and
himself.
Thirdly, he will never represent or not -- he finds
himself -- he will be in a conflict position if this department
or the board hires him, if he would work for the department or
the board because he is Mink & Yuen's attorney.
CHAIRMAN RICE: Now, board members, my personal
opinion. Is that okay, Mr. Nobriga?
MR. NOBRIGA: Yeah. Yeah.
CHAIRMAN RICE: I'm not necessarily supportive of
the accusations that there are misdeeds in the preparation of
this SEIS. There is definitely opposition. There is going to
continue to be opposition.
However, simply as a business person, I don't
know -- and there is a need that's undefined to me for -- to
move quickly on this. But as a business person, again faced
with possible opposition, I don't know why we wouldn't take the
time to make sure that we are putting our best foot forward.
That is not a reflection on Mink & Yuen or anyone. It is
simply, I think, a cautious way to go about it.
And again I stress that I don't think there's
misdeeds -- there's a lot of technical data in here. For the
record, I read the whole thing more than once, including all
the submissions.
There's a lot of technical data in this document
that I don't understand and I'm not going to understand it in
the future, maybe not until -- not ever; but there are people
who do know that kind of stuff, and there are people who are
well-versed in litigation. So that's my only thought as a
body. End of story.
MR. NOBRIGA: Mr. Chairman, I believe the process is
well-defined. We're basically at this point because of an
action, judicial action 10, 12 years ago from the first --
there's a lot on the table; there's a lot of work yet for us to
do.
I feel it's in this body's best interest to accept
the SEIS with the amendments and let's see where it goes.
Because I don't think we're going to reach the final SEIS in
our tenure on this board, any of us. It's going to go on for
quite some time. That's all I have to say. Ready to make a
motion.
CHAIRMAN RICE: Go ahead.
MR. NOBRIGA: I move we accept the SEIS including
the amendments proposed by Mink & Yuen as listed on page 2,
parties involved; page 3, list of changes; page 4, replace page
4; page 5, replace page 10; page 6, testimony, May 17, 2002;
page 7, testimony to draft SEIS.
MR. HASHIMOTO: Second.
CHAIRMAN RICE: Moved and seconded to accept the EIS
with the amendments as distributed. Discussion? Mr. Starr?
MR. STARR: Yeah, Mr. Chair, I, for one, will be
voting against it, because I don't think it's prudent to accept
and file a document of this importance and magnitude without
having our own legal counsel, expert legal counsel look at it
and give us an opinion and see if there is ways to improve it.
I feel that, as the chair stated, in a business
matter, this is something that I would not do as a prudent
businessman, to proceed on a document that is certainly headed
for long litigation, without first having legal advice on the
document before it's submitted on a path that will take it very
rapidly into the courts.
I would think that any attorney we would use later
on to defend it in the courts will be telling us, "I wish I
could have reviewed and dealt with this document before it was
submitted." And so I think we're heading into a path of
potential failure at the most important task that this board
has ever been confronted with.
CHAIRMAN RICE: Mr. Nobriga?
MR. NOBRIGA: That is true, and I'm just giving you
the option to reject the entire piece as well with this
motion. It's not going to change what's there. It's there.
Either we're going to accept what's there or we're going to
reject the whole thing, scrap it, and end this whole fiasco.
CHAIRMAN RICE: Kent?
MR. HIRANAGA: I'm trying to understand the
process. If the SEIS is submitted to the courts and there is a
lawsuit filed to challenge the validity of it, during the
lawsuit, can the opposing parties negotiate for a settlement or
is it once it's submitted it's set in concrete, it's either
accepted or rejected by the court and no negotiating is allowed
during the judicial process?
CHAIRMAN RICE: Mr. Kushi, can you respond, please?
MR. KUSHI: Mr. Chair, Board Member Hiranaga, my
understanding is that this document will not be submitted to
the court. The court will look at it if it's challenged after
your acceptance. The challenge would come via existing court
case.
The court will not reject or accept the final
document. It will just say it's adequate or it's inadequate.
If it's inadequate, go back and do it again. If it's adequate,
no challenge -- like in any litigation, there's always room for
settlement. If the parties settle before a judge makes a final
ruling, then it takes it away from the court's jurisdiction.
MR. HIRANAGA: You are saying that during the
process, if negotiations occur and the opposing parties are
satisfied, they can remove their lawsuit and it's up to the
court to accept or reject it?
MR. KUSHI: That's, in essence, correct. The court
always approves any settlement. I would imagine if there were
negotiations conducted and it came to an agreement, the
negotiations would take a form of amendment to the document and
they would have to go back and do it again, publication, all of
that stuff. I don't think the court can use its judgment to
say yes or no as amended. You understand?
But if there is a settlement and let's say there's a
section that the opposing parties say you have to do this
again, and we do it again, the board does it again, and we do
it correctly according to the settlement, I can't see the court
entertaining another appeal. You understand? You settle in
good faith.
But again, anything is possible. But the court is
basically looking at whether the document is adequate or
inadequate.
CHAIRMAN RICE: Mr. Craddick?
MR. CRADDICK: In the previous court case, an offer
was made to settle if we would reduce the pipeline size from 36
inches to 12 inches. So I would expect that same issue would
probably be on the table, because I think that is a concern
that East Maui system will go much further --
MR. KUSHI: Just a minute.
(There was a discussion off the record.)
MR. KUSHI: Mr. Chair, I would advise you to
disregard those comments.
CHAIRMAN RICE: Mr. Kushi has that esquire after his
name and Mr. Craddick does not. Yes, Kent.
MR. HIRANAGA: Certain board members wish to have
this document reviewed by an expert, does that expert have to
be an attorney or can it be -- the only experts that we can
look at to review this product is an attorney? I don't know
who can answer that.
CHAIRMAN RICE: I'm one of the people that advocates
for that. I would say that certainly everybody in this room
agrees that a challenge is inevitable. I have not heard one
person take the opposite position. Our side or the other side,
for that matter. If that's the case, wouldn't you want the
person that's going to work with you on that challenge to have
a chance to look at the document before it's submitted? It's
logical.
Mr. Starr's claim about improprieties I don't
necessarily agree with. I don't necessarily know of them. I'm
talking about logical business sense. I'm not talking about
rejecting it, either. I'm just saying we don't have to accept
it until it's reviewed. Because if someone says to tweak it a
little bit because I'm going to be better able to defend it,
then we tweak it, and then we accept it.
MR. HIRANAGA: This expert, is it only attorneys we
would look at? If you are going to have to do a procurement,
you would have to solicit or invite experts. Are experts on
the list only attorneys? Is that what we're looking at? Who
is going to be the expert? What field of expertise are they
coming from?
CHAIRMAN RICE: Well, I think the way I would
approach it is that there are attorneys who specialize in this
and they would probably know. They might have to have other
people helping them, probably would. If it's going to be
challenged in court, the lead person is going to be an
attorney.
CHAIRMAN RICE: Ginny?
MS. PARSONS: I don't disagree that I think that --
you realize there is going to be a challenge for whatever
purposes, whether to stall it or whatever, and it won't matter
if you change this or review it.
You have had -- our legal counsel reviewed it, we
have had Mink & Yuen's legal counsel review it, and they have
come to the conclusion that procedurally we're correct. And
that Mink & Yuen is standing behind the SEIS. And our director
stands behind the SEIS.
It won't matter if you have Bill Clinton come in
here and review it as an attorney. It will be challenged.
Period. That's the bottom line. And it's not going to help
which way you tweak it, because the purpose and the intention
of the challenges are not necessarily what is wrong with the
EIS.
So I think at this point we need to move forward and
we realize that we need to probably hire some counsel if we are
challenged or we can't come to some agreement. We do have a
videotape here. The monitoring well issue is something that
the board is concerned about. You can see the water that
wasn't there.
The public comment issue. The only thing that I can
think of about the public comment issue is the May 17th
meeting. I understand that was an open meeting where all board
members could have attended if they wanted to.
And the other question of the stream flow, we won't
use the well if we're into the stream flow issue. So even the
things that Mr. Parker brought up, those have been addressed.
So I think we should go forward, the motion is on the table,
let's see where we go from there.
CHAIRMAN RICE: Mr. Helm?
MR. HELM: Just to share my perspective into this.
I read this, maybe not as detailed and not quite understanding
some of the detailed scientific issues, but what I look for is
basically some of the stuff that I'm concerned about and that
has to do in relationship to some of the social impacts and
environmental impacts that some of this document shows.
And my concern is that basically I look at impact
from industry flow standards. Impacts on some of the comments
that were made by Mr. Parker in regards to our ocean coastlines
and the fishermen that depend on some of those things for
subsistence. It's all of those kinds of issues that I kind of
look at because these are my interests.
I am basically a person that supports businesses and
environment as a whole. So what my concern would be is that
what would it take just to get another person to reevaluate it
to pinpoint some of those issues and clarify some of those
issues that are on the list and then go from there? It doesn't
take much to get that.
It's been ten years already, what's another six
months or three months to dress up this and fine-tune these
documents to cover some of those issues. My concern is that I
would be very uncomfortable if we didn't attempt to clarify
some of those issues that are hanging out there.
CHAIRMAN RICE: Clark?
MR. HASHIMOTO: So what happens if we don't accept
it today? What are the ramifications? It just sets it back?
CHAIRMAN RICE: I think if there's a motion on the
table to accept it, if it passes, then it's accepted. If it
doesn't --
MR. HASHIMOTO: If it's not accepted, it goes --
CHAIRMAN RICE: Then we have to take some other
action.
MS. PARSONS: Mr. Craddick, could you answer the
question of the issues that we would be up against if we don't
pass this today or accept it?
MR. CRADDICK: This is an alternative to using Iao
and Waihe'e aquifers. And we know that item is on the table
before us here. We have to comment to the water commission by
November 4th and having this as an option on the table would
assist in that.
Back in your time of the draft EIS -- brought up an
issue of lapsing funds for portions of this project as an
issue. And other than that, I just wish you would ask some
questions here and go through it. Because we have the marine
resources study and I'm just quoting, In the basic finding of
the report, the potential effect of the proposed project on
water chemistry and marine community structure revealed that
there appears to be no potential for negative impacts to marine
ecosystems in the region of East Maui.
So the reasoning behind that is the fresh water that
goes out to the ocean, EMI takes about 15 percent of it. The
other 85 percent still goes to the ocean. If you minus the
groundwater that is going out there, it's a very small
component of the near-shore water chemistry.
And the complete consultant report is in there. And
Adolf, who has hit only the most important issue in the EIS,
which is what I feel is a legitimate issue, the stream flow
issue, we have beat that one and flawed it to death. And I
forget who it was that stated that's been an original concept
of the whole plan, the effect of stream flow. That well will
be sealed up, it will not be used. So by definition, we will
not affect stream flow.
CHAIRMAN RICE: The question, Mr. Craddick, was what
will happen if we didn't accept it today? And your comment
was?
MR. CRADDICK: Wait for another day. And please say
what you want done, we'll get it done.
CHAIRMAN RICE: Kent?
MR. HIRANAGA: I guess I said this at previous
meetings. The board members, prior to me being on this board,
selected Mink & Yuen as their consultant to prepare the SEIS,
Mink & Yuen felt it appropriate that they hire their own legal
counsel to review the product that they created.
I don't believe that another attorney would know
significantly more as to what would be required in order to
eliminate any legal challenge to this document. So it comes to
a point, in my opinion, that you study a matter to a certain
degree, then you need to move forward. I'm prepared to move
forward at this time.
CHAIRMAN RICE: Mr. Starr?
MR. STARR: I just would like to remark that that
attorney has not come before us and given any comment to us
directly on this document. So as far as I'm concerned, it is
not -- on our behalf, it has not been reviewed as far as
content goes.
CHAIRMAN RICE: Mr. Craddick?
MR. CRADDICK: I was talking with Ed Kushi to see if
there's any way we could speed up the process of getting some
consultant. I think as long as the person that you got to
consult with was not a special counsel, perhaps we could get
somebody with some legal knowledge and some engineering
background that the board could consult with on a shorter time
frame.
CHAIRMAN RICE: Any discussion on the motion? All
in favor say "aye."
(A chorus of ayes.)
Opposed say "nay."
(Three said nay.)
MR. STARR: Nay.
CHAIRMAN RICE: Nay.
MR. HELM: Nay.
CHAIRMAN RICE: Motion does not carry. Starr, Rice
and Helm said nay.
MR. STARR: Mr. Chair, there was a motion made at
the last meeting that I don't believe was rescinded, that
related to funding for counsel, I believe. I'm not clear on
what that was. Can we ask to know what that motion was so we
know where we stand before -- I have another motion to make,
but I want to make sure that it jibes with what we did
previously.
MR. CRADDICK: I don't believe we have the minutes
of those meetings here before us, but my understanding was that
it was a certain amount of money to hire special counsel to
advise the board on legal issues. And in particular, to try
and get Ben Matsubara to review, complete his --
CHAIRMAN RICE: I think the first motion was very
simply to hire outside counsel. It was unanimous. If I
remember correctly. Yes, Kent.
MR. HIRANAGA: My recollection was that the motion
to hire legal counsel was denied and the motion to fund
Mr. Matsubara's completion of the review was approved.
MR. STARR: Could we have a short recess?
CHAIRMAN RICE: Yes, we'll take a short recess.
(A recess was taken.)
MR. STARR: I have a motion, Mr. Chair. I move that
the Board of Water Supply chair be empowered to hire outside
counsel to work with corporation counsel to review the EIS
document and report back to the board, after following the
proper procedure to obtain county council approval with a max
expenditure of $30,000 with funds to come from the Board of
Water Supply professional services budget.
MR. HIRANAGA: Could you repeat that?
MR. STARR: I move that the board chair be empowered
to hire outside counsel to work with corporation counsel to
review the EIS documents and report back to the board members,
after following the proper procedure to obtain county council
approval and with a maximum of $30,000 with funds to come from
the Board of Water Supply -- I guess Department of Water Supply
professional services' budget.
CHAIRMAN RICE: Is there a second?
MR. NOBRIGA: Second. Question.
CHAIRMAN RICE: Yes.
MR. NOBRIGA: We passed on this motion last time.
CHAIRMAN RICE: We're not sure if we did or not.
MS. PARSONS: The motion was for Ben Matsubara.
MR. NOBRIGA: No, it wasn't.
CHAIRMAN RICE: One second. What, Ginny?
MS. PARSONS: Well, I would like to amend it, if
possibly, just to say consultant rather than counsel. Because
I think the issues that we're discussing on this EIS have
nothing to do with the legal procedure. They have to deal with
the engineering issues, and I think we need a consultant, not a
counsel.
CHAIRMAN RICE: Kent?
MR. HIRANAGA: Nothing personal with the chairman,
but I am a little concerned with granting a unilateral
authority to select the expert to review the documents. I
think if we're going to go down that path, the board needs to
decide who that expert would be.
CHAIRMAN RICE: Mr. Starr?
MR. STARR: I'm sure that if it's our desire, the
chair will bring his recommendation back to the board before he
acts. I think that's the way of dealing with that.
My belief is that you hire a licensed attorney when
you are going to do legal work. You hire -- and that's what
this is. I also feel that if we try to use a different term to
circumvent the county council, that's a corner that we may
regret. I think it's in our benefit to have the county council
on our side on this and proper procedure be followed all the
way through.
CHAIRMAN RICE: Yes, Ginny.
MS. PARSONS: Can we get a clarification from the
board? Because the reason I understand Mr. Helm did not
support this document, and I'm going back to read it off the
record, were issues of engineering. That was why -- that's
what he wanted clarified.
Can we get a clarification from the board before we
issue a dictate to buy an attorney? Are we looking at this EIS
on its merits that Mink & Yuen produced, or are we looking at
procedure that was violated, that possibly was violated? Which
is it? And let's be clear.
Because, one, an attorney is only going to give you
legal opinion as to how we proceeded, not to the validity of
the document. An engineer can review the document and tell you
the validity of the engineering issues. Right now we are
pretty close in a vote for five across the board.
Mr. Helm, could you maybe tell us what you were
looking for in this document and how it was decided we need a
consultant or an attorney?
MR. HELM: Again, I guess what I had questions about
is issues that surfaced from all of the letters that was part
of this document in here, and issues that probably covers a
wider spectrum than just engineering things.
So my concern is obviously things of social impact
that weren't very clear, and there were issues that needed
clarification on riparian rights, pertinent rights, in-stream
flow standards, things of that nature that I also had concerns
about outside of some of the engineering concerns.
CHAIRMAN RICE: Any other discussion? Call the
question. All in favor say "aye."
MR. STARR: Aye.
CHAIRMAN RICE: Opposed say "nay."
(A chorus of nays.)
The rest of the board said nay. Motion does not
pass. Okay. Mr. Hiranaga?
MR. HIRANAGA: I would like to make a motion to
defer this matter to the next board meeting.
MR. NOBRIGA: Second.
CHAIRMAN RICE: Discussion? All in favor say "aye."
(A chorus of ayes.)
Opposed say "nay."
(None.)
Okay, it's on the agenda. We're done with this one.
MR. HIRANAGA: Mr. Chair?
CHAIRMAN RICE: Yes, Mr. Hiranaga.
MR. HIRANAGA: I would also urge all board members
to attend that meeting, because it's a very important meeting.
I understand one board member is recusing himself and we have
one absent board member. And again, if we can urge all of you
to mark your calendar and keep it open so we all can attend.
Thank you.
CHAIRMAN RICE: Mr. Craddick?
MR. CRADDICK: So the vote that you made on
accepting the EIS failed. And I think there's some -- if you
want to put that item back on the agenda, there's some process
you have to follow to do that.
CHAIRMAN RICE: Fine.
MR. CRADDICK: Nobody has said why they think it
fails and that is --
CHAIRMAN RICE: Mr. Craddick, the motion was to
accept it, it failed. The motion was not to reject it.
MR. CRADDICK: Okay. Okay.
CHAIRMAN RICE: Okay?
MR. CRADDICK: Okay.
CHAIRMAN RICE: There's no problem putting it back
on the agenda.
MR. CRADDICK: Okay.
CHAIRMAN RICE: If there's no objection, we have
counsel here, Jim Tam, and he is here to talk with the board on
the possible purchase of Wailuku agriculture lands. And I
believe you received a document from Jim's firm. Board
members?
MR. STARR: I haven't.
MS. PARSONS: I haven't.
MR. TAM: I thought it was mailed out.
MR. STARR: Was it mailed directly to members?
MR. TAM: Staff took care of it so I'm not sure. I
can check. But I have copies I can distribute. I have to just
make copies.
CHAIRMAN RICE: Before we go any further, if there's
any discussion, we need to go into executive session and
consult with our attorney on this issue. But before we do
that, I want to make sure there's an opportunity if anyone
wants to say anything in public. Mr. Starr?
MR. STARR: Mr. Chair, before we go into executive
session, I would like to ask that whatever part of this, if
any, or just some generalized statement of what we're
discussing can be made in open session without harming --
CHAIRMAN RICE: I think I can do that. It's the
chair's intention to come away from this meeting with a
resolution to make an offer to purchase property from Wailuku
Ag. And there are some issues that the board needs to discuss
in order to come -- to give direction to the law firm to make
that offer. And the letter that the law firm prepared was --
asks some questions that the board needs to think about or to
get to that point. So that's the gist of that.
MR. STARR: I just want to be clear. I'm asking
corp counsel that the propriety of discussing item --
discussing this issue prior to making an offer, whether that's
a proper use of executive session.
CHAIRMAN RICE: We're not making -- we're consulting
with our attorney so that we can make an offer.
MR. STARR: Is that acceptable?
MR. KUSHI: Mr. Chair, prior to going into executive
session, under 92-5, in one of those sections, when you are
dealing with the negotiations you are entitled to do it in
executive session. In terms of public testimony, again, the
public may testify on the agenda. But what you do in executive
session is you deal with your special counsel to work out
terms, and any terms coming out of executive session you need
to go into open session.
MR. STARR: I just wanted that clarified.
CHAIRMAN RICE: Mr. Nobriga?
MR. NOBRIGA: Mr. Chairman, am I correct in
understanding that you wish to go from item 6, Old Business, at
this time, to item 8, Other Business?
CHAIRMAN RICE: Yes, sir.
MR. NOBRIGA: Thank you. I have no objection.
Mr. Chairman, I would like to make a motion that pursuant to
HRS Section 92-5(a)(3) in order to deliberate concerning the
authority of persons designated by the board to conduct
negotiations of labor or to negotiate the acquisition of public
property, or during the conduct of such negotiations that we
move to go into executive session to consult with our attorney,
Mr. Tam.
MR. STARR: Second.
CHAIRMAN RICE: Discussion? All in favor say "aye."
(A chorus of ayes.)
Opposed say "nay."
(None.)
Motion is carried. We're in executive session.
(Whereupon the board convened in executive session.)
CHAIRMAN RICE: We're back in open session. I would
like to thank Mr. Tam for coming out to the meeting of the
board regarding the important information. And at this point
the chair will entertain a motion. Mr. Starr?
MR. STARR: I would like to move that Mr. Tam's
firm's contract be amended to include a painting and appraisal
for the conservation district watershed land above the
conservation line on West Maui.
MR. NOBRIGA: Second.
CHAIRMAN RICE: Moved and seconded. Discussion?
Mr. Hiranaga?
MR. HIRANAGA: Is it appropriate for the counsel to
review the -- prior to their selection of the appraiser, for
comment by the board versus just unilaterally selecting an
appraiser? I would like to have some comment as to who he is
going to select as his appraiser, because, I mean, you put five
appraisers in the room, and you get five different numbers.
The number is the important thing. I don't know if that's --
CHAIRMAN RICE: You want to be a committee of one to
work with him?
MR. HIRANAGA: Other board members may have input
also, as to who would select the appraiser.
MR. STARR: How about Kent working as the chair?
CHAIRMAN RICE: Everybody happy with that?
Mr. Kushi?
MR. KUSHI: Mr. Chair, the understanding is that
Mr. Tam's office will come back with the proposal to amend.
The understanding also is that this has to go to the county
council to amend its master contract.
CHAIRMAN RICE: Yes. Okay.
MR. KUSHI: That's part of his contract which the
counsel approved. Either that or you just do a separate hiring
of an appraiser to work with Mr. Tam. That's another avenue
you may want to review.
MR. STARR: I was thinking at a subsequent meeting
we have an agenda item to deal with funding for Mr. Tam's
firm. To just deal with that --
CHAIRMAN RICE: Okay. Everybody in agreement? More
comments? All in favor say "aye."
(A chorus of ayes.)
Opposed say "nay."
(None.)
Motion is carried. Yes, Mr. Starr.
MR. STARR: Mr. Chair, I would like to make a motion
that Mr. Tam's firm prepare a suggested proposal on offering a
letter for the potential purpose of the board acquiring the
watershed land above the conservation line on West Maui and
that he bring this proposed offer back to the board for review.
MR. NOBRIGA: Second.
CHAIRMAN RICE: Discussion? All in favor say "aye."
(A chorus of ayes.)
Opposed say "nay."
(None.)
Motion is carried. Thank you. Very good. Are we
done?
Moving on. Mr. Moretti has been sitting here
patiently and if there's no objection from members of the
board, I'm going to move Mr. Moretti up to the next person on
the agenda. Mr. Tam, you want --
MR. TAM: If you don't need me, I'll catch an
airplane back.
MR. STARR: Thanks.
CHAIRMAN RICE: Mr. Moretti -- seeing no objection,
so ordered. Mr. Moretti, step forward, please. Mr. Moretti
sent a letter -- at our previous meeting we discussed getting a
second opinion. Mr. Kushi was going to give us an opinion in
writing, but that has not been done. Mr. Kushi is prepared to
make a statement. If you would, Mr. Kushi, it's possible we
can move along on this issue.
MR. KUSHI: Yes, Mr. Chair, thank you. Again, I
apologize to the board for not -- I was instructed and I had a
request for a formal legal opinion about the specific issue,
not only on Moretti's case but the general issue as to the
jurisdiction of the department, which includes the board,
concerning private water systems.
My understanding was that after I had issued a
written opinion, the board was of the feeling that they may
request a separate counsel to review and issue a second
opinion. That's where we are right now. I can still do that,
but obviously I have not done it today.
However, in discussing this matter with the board
and the director, I would like to make some statements again.
At this point in time, I don't feel my opinion as given to you
previously orally will change. It's my opinion that reviewing
your departmenta