BOARD OF WATER SUPPLY
COUNTY OF MAUI
UPCOUNTRY AGREEMENTS WORKSHOP
Held at the Kahului Shopping Center, Kahului, Maui,
Hawaii, commencing at 9:00 a.m. on July 10, 2003.
REPORTED BY: LYNANN NICELY, RPR/RMR/CSR #354
IWADO COURT REPORTERS, INC.
A P P E A R A N C E S
CHAIRMAN: KENT HIRANAGA
VICE CHAIRMAN: MICHAEL P. VICTORINO
BOARD MEMBERS: STACY HELM CRIVELLO
KENNETH M. OKAMURA
DOROTHY R. PYLE
SALLY RAISBECK
CLARK S. HASHIMOTO
GINNY PARSONS
DEPUTY CORPORATION COUNSEL: EDWARD KUSHI, JR., ESQ.
DIRECTOR: GEORGE TENGAN
BOARD SECRETARY: CATHY HOWARD
CHAIRPERSON HIRANAGA: I would like to call
the meeting to order. First of all, I would like to
thank the board members for installing their
confidence in me by electing me as the new chairman.
I would like to go through the agenda now,
which is the first matter. I note that all members
are present. Corp Counsel Kushi is present and we
also have Brian Miskae from the Planning Department.
I'd like to encourage Brian to attend all meetings and
hopefully we'll have a representative from the Public
Works Department attending also in the future.
Are there any announcements? Moving on to
testimony from the public, is there anyone here that
wishes to provide testimony regarding the agenda
matters?
Seeing none, moving on to first item on the
agenda, presentation and discussion of agreements.
Jacky, are you going to be providing us a
presentation? Okay.
MS. TAKAKURA: Good morning, everyone, I'm
Jacky Takakura, I'm the information specialist with
the Department of Water Supply and I'm going to be
going over the Upcountry Maui Water System Agreements.
And I'm just going to be following along the agenda
items in order as we see them on your agenda.
The agreements are divided into four
categories. The first one is the Upcountry
Agreements. Second is specifically regarding Kulamalu
and source, storage, and transmission for that
project. Third is Department of Hawaiian Home Lands
and these are regarding the projects that they have in
Kula and Keokea. And lastly DBCP.
Getting into the first section, Section A,
Upcountry Agreements. These agreements -- there is a
long series of them, if you look in your agenda. In
fact, 16 different items within this. And they all
start in 1961 with a Master Water Agreement. And
that's by and between East Maui Irrigation Company,
Ltd., Hawaiian Commercial & Sugar Company, Ltd, and
the Board of Water Supply for the County of Maui. And
what this agreement basically says is that the Board
of Water Supply has the right to collect water in
areas owned or leased by EMI and HC&S in the Waikamoi
area and the Awalau intake area. These locations
include the existing Board of Water Supply aqueduct, a
natural channel within Haiku-Uka, which is what we
consider Waikamoi now, and the amount from that area
is 5 MGD. Also, the Awalau-Opana water development
tunnels, ditches, springs and water channels and
Hululhulunui water development tunnel and springs, 1.5
MGD; Wailoa Ditch, 0.8 MGD, the various systems of
water systems of HC&S, 0.6 MGD, and also the tunnel
above the Koolau ditch between Kuhiwa and Makapipi
gulches.
So that's Waikamoi area, 5 MGD; Awalau, 1.5
MGD; Wailoa ditch, 0.8; HC&S, 0.6; and this tunnel is
actually what we consider our Nahiku system, which is
600,000 gallons per day.
This looks very different from the water we
get now. From Waikamoi we don't get quite as much.
Awalau. We don't use at all. Wailoa Ditch back then
was very small, 0.8. Back then Pukalani didn't exist
and most of Haiku was supplied by Awalau. So you can
see it's a little bit different source of water and
where the water goes back then, a little over 40 years
ago.
And what this agreement said was that the
Board of Water Supply was granted easements for the
existing aqueduct system and to extend, construct,
operate, maintain and repair the ditches, flumes,
pipelines, pumps, dams and reservoirs, and to tunnel
at any suitable points within the drainage area for
the conveyance of water to the Kula pipeline and/or
Waikamoi pumping station, and to maintain, operate and
repair the Kula pipeline.
There is no guarantees because of course we
are relying upon rain for this water supply.
Another condition was we couldn't -- water
could not be used for power development if it were to
reduce the flow to less than 5 MGD at the Waikamoi
Main Line intake, or if it causes the Board of Water
Supply to have to pump water from the 3,000 foot level
when water is otherwise available at that Waikamoi
Main Line intake level.
Now, if EMI or HC&S could not renew their
water license or if the water supply is reduced
because of that, then they have the right to use the
water for their own purposes after giving the Board of
Water Supply one year's written notice. Those are the
state licenses.
Also within this agreement, the board had the
right to construct dams, pipelines, plants, flumes,
ditches and other facilities so that we could collect
and store water and it must be at least 20 percent
leakproof -- as leakproof as possible.
Now, this agreement went from 1962 to 1986 and
it was only for supplying the Kula pipeline and the
Olinda lateral above the Awalau-Makawao supply line,
except in emergency and even then you'd have to get
written permission.
Now, if rainfall was extremely low, if the
total flows available for HC&S was 15 percent of
normal capacity, which is 370 MGD, the board shall
restrict use of water to essential purposes only.
You'll see this number later because 15 percent of 370
is 55 MGD, so you'll see that number in some of the
future agreements, too.
Now, this agreement can be extended and the
rates for the water taken that the board pays shall be
adjusted every five years. Okay. So that was 1971.
The next agreement came in 1973. This is
number 2 on the agenda under A. Memorandum of
Understanding, dated December 31, 1973, by and between
the Board of Water Supply, the County of Maui, East
Maui Irrigation Company, Ltd., and Hawaiian Commercial
& Sugar Company, a division of Alexander & Baldwin.
Now, what this one said was that we would
continue to collect that 6,000 gallons per day from
Nahiku. Waikamoi-Awalau -- within the area in which
EMI has been appointed exclusive manager to collect
and deliver water, they shall operate, maintain and
report the collection and conveying facilities,
operation of storage and pumping facilities, and
collect at the highest possible elevation the maximum
quantity of water economically feasible. Any
replacements to the existing collection facilities or
any additional collection facilities installed by EMI
shall belong to the Board of Water Supply upon
completion of construction of each item. The
agreement also cancelled any inconsistency that there
may have been with the previous agreement.
Now, regarding Wailoa Ditch, remember in the
1961 agreement the allotment was 0.8 MGD. Now the
board can take up to 12 MGD with an additional 4 MGD
available if we give them one year's written notice.
Now, if EMI loses the license or otherwise
cannot deliver the water, with the Board of Water
Supply's approval by two-thirds vote of the members
present, the amount of water delivered to the board
will be reduced proportionately. And the charge for
this water was 6 cents per thousand gallons from all
the areas. In the 1961 agreement the rates were
different depending on the area. Now it's across the
board 6 cents per thousand gallons. That was 1973. I
believe now in 2003 the rate is still the same. This
1973 agreement was for 20 years, to 1993. So that's
the second agreement.
And this is the area that the agreement is
specifically concerned with. The larger red area is
the Waikamoi area. You can see the flume there. You
can see the dam. There is two -- you can't really see
these circles, but there is two 15 million gallon
reservoirs there and there is an arched dam which
holds about 10.5 million gallons.
Down here is where Olinda water treatment
facility is now located. And here is where the
Piiholo plant is. And the smaller red area is the
Awalau tunnel area.
And I think you have this map in your packet
except that it's black and white so it's not as easy
to see. And this shows the different areas of
responsibility. The areas in red are EMI's
operational jurisdiction and these longer lines in
blue like up here and down here and then also over
here to Piiholo, that's the Department of Water
Supply's operational jurisdiction. Here's the 250
million gallon reservoirs and there is the arched dam.
MR. TENGAN: [Inaudible].
MS. TAKAKURA: And Kahakapao reservoirs, which
were built in 1994, are right here at the end of this
red line and those hold a hundred million gallons. So
that's the Waikamoi reservoirs, total of 30 million
gallons. And they're just about full now because of
the rains we've been having. They were empty last
week. Those were built in 1961 out in the forest.
This is a picture I found in our archives from 1955.
This is the reservoir -- not the 15 million gallon
ones, but from a point 500 feet upstream from the arch
dam. This reservoir is 800 feet long. This was taken
December 29th.
And this is the arch dam when it was built,
and also a couple years ago. It holds 10.3 million
gallons. That was quite a feat out where it was in
the middle of the forest to build something like that.
Okay. Number 3 on the agenda is the letter
dated January 22, 1979, from the Office of the Mayor,
County of Maui, to Maui Land & Pineapple, regarding
the proposal and offer to exchange real property.
Now, the purpose of this letter was to promote
diversified agriculture. The letter is dated January
22nd, but it was accepted by Maui Land & Pine on March
5th, 1979. And it was basically a land exchange. The
county received 326 acres of vacant unimproved land at
Omaopio, and Maui Land & Pine acquired some land in
Napili for their Kapalua project. They received two
areas, two road areas, 1.185 acres and 5.726 acres.
And part of the agreement was that the county will
develop an irrigation water distribution system for an
agricultural park. And this was for the 326 acres and
it would also have the capacity to provide water to
Maui Land & Pine's adjoining 725 acres.
The Department of Water Supply will send to
Maui Land & Pine water sufficient for the irrigation
of agricultural crops based on the water requirements
for the growth of pineapple. So if they grew
something else, they would still get the allotment of
what it takes to grow pineapple, not for whatever
other crop it was.
Now, in terms of developing that water system,
Maui Land & Pine would pay the incremental costs for
expanding that water system to provide water to their
adjacent land. So we would pay -- or the county would
pay for the capacity for the ag park and anything
beyond that, Maui Land & Pine would pay. That's
incremental cost.
Now, I went and looked in our annual reports
and the Department of Water Supply began working on
the project in 1984. And from the annual report it
says, "The water system for the first phase of the
Kula Agricultural Park, including the sewer, storage
and distribution water lines, were substantially
completed by the end of this fiscal year" -- so that's
1984.
From the following year, 1985: "The park is
in use. The project has been completed except for a
few punch list items. The park consists of 31 farm
lots and the water is supplied from HC&S irrigation
system." And the cost of the construction of this
project was $2.2 million.
And I just have -- oh, here's the map of where
it is. This is from the TMK maps. This is Pulehu
Road, just to give you a sense of where we are, going
towards Kahului, Pulehu Road, and these lots are the
Kula Ag Park lots. This is the adjacent 725 acres.
You can see it's for various people to grow things.
This is the usage from when it first began in
use in 1985 until I could get the data, 1993. And you
can see the number of meters, number of services
really increased from 16 the first year to 37. And
the amount of water that these customers used grew
also from 28 million gallons in a year to 147. The
cost did go down as we got more customers and there
was efficiencies realized. And those costs are for
the electricity and for other costs to operate the
pumps. And this is all from our annual reports.
And this is what it looks like. This is the
intake from HC&S ditch. These were taken last week.
This is the station screen box for the pumps. This is
the station pump and screen box. Reservoir B.
Another one of ponds. And you can see in the
foreground are fire prevention crew in their little
huts. This is another time, you can see it was really
dry. So that's what the Kula Ag Park looks like for
those of you that have never been there, like me.
Number 4 on the agenda is a letter dated July
27th, 1982. And this is from Alexander & Baldwin,
Inc., to the Department of Water Supply regarding the
water agreement dated December 22nd, 1961, as amended
by the Memorandum of Understanding dated December 31,
1973, Kula Agricultural Park. And this is basically
regarding the draw from the Waialoa ditch. It
specified where the delivery point was going to be
just beyond reservoir 40 and that we would construct
the delivery system and take care of it also. And we
would also let HC&S know when we would be pumping, we
would let them know when we're going to start pumping
and when we're going to stop. And if it's within
normal business hours, there would be no charge. But
if it was after hours, there would be a cost involved
in that. But if the staff were already there, there
is no problem, just let them know. So that was number
4.
Item number 5, letter dated December 27th,
1991 from Hawaiian Commercial & Sugar Company to the
Board of Water Supply regarding the MOU dated December
31st, 1973. This was basically an extension. It
brought the MOU to December 31st, 1995.
Number 6, similar, this is the amendment to
MOU dated May 1st, 1992, by and amongst East Maui
Irrigation Company Ltd., A&B Hawaii, Inc., Hawaiian
Commercial & Sugar Company, a division of Alexander &
Baldwin, Inc., and the Board of Water Supply, County
of Maui. This extended the MOU for 22 years to
December 31st.
Okay. Number 7 on the agenda. This was
specifically about Nahiku. Let me read the title of
the amendment. Second Amendment to MOU, dated April
25, 1994, by and amongst all the same areas parties,
EMI, A&B, HC&S, and the Board of Water Supply. At
this time Nahiku was growing and we actually -- part
of the agreement was we would get 6,000 gallons per
day and we were actually taking more in the range of
12,000 gallons per day. So what this agreement did
was raise our allotment to 20,000 gallons per day
because the community was growing. So that's what
this was about. Okay.
Item number 8 on the agenda is the Third
Amendment to the MOU and this is dated January 3,
1996. And what this one was about is we would
minimize our intake from the Wailoa Ditch when the
flows were low, when they were less than 55 MGD. And
we also take steps to reduce our dependency on the
ditch when the flows were that low. And the other
thing that this amendment did was extend it to 1996.
Item number 9, the Fourth Amendment to the
MOU, dated December 31, 1996. This is regarding the
flume and that was in need of repair. And so the
Board of Water Supply budgeted $60,000 to work on
that. It also specified that our allotment from the
Waialoa ditch would be 7 MGD and also there would be
1.5 MGD available from the Hamakua ditch for the
agricultural park. So that's a total of 8.5 MGD. And
this amendment also extended the MOU another year to
1997. So that's number 9 on the agenda.
Number 10 is the Addendum to the Fourth
Amendment to the MOU and this is dated May 6, 1997. I
have a typo in there, it's supposed to be 05/06/97.
And this is regarding the flume repairs. It specified
that we would use unmilled redwood lumber for these
repairs. And I had to ask why are we going to use
unmilled lumber. And that's because that's what the
original flume was made of and if we had used milled
lumber, which is actually smaller than the unmilled,
it would have changed the dimensions of the flume and
it would have also needed shims and it would
have been more expensive. So that's what this
amendment was about, so keeping with the original
dimensions of the flume. Okay.
Number 11 on the agenda is the Fifth Amendment
to the MOU, and this is dated January 20, 1998.
Specifying again those repairs and also gave us an
additional 175,000 gallons from the Waialoa ditch and,
thirdly, it extended the term for another year to
1998.
That's a picture of the flume. This is not
back in 1998, this is when it was repaired in the year
2000. So just you can see what it looks like. It's
not an easy job to repair a trestle like that in the
middle of a rain forest, especially after a flood.
Item number 12 on the agenda is the Sixth
Amendment to the MOU, dated December 28th, 1998, and
effective as of December 31st, 1998. And this is
again urging us to make the necessary repairs and
maintenance of the flume. We had budgeted $60,000 for
this. And the term extended another year to 1999.
One thing about urging the board to get the
repair and maintenance done, it's in these agreements,
it does specify that if something were to happen to
the flume and we had not done the necessary repairs,
the Board of Water Supply would not be able to make up
for the lost water by taking water from a lower
source. So it was really important that these repairs
were getting done.
Okay. Item number 13 on the agenda is the
Seventh Amendment to the MOU. This is dated December
29, 1999, and it basically extended the MOU for two
months.
Number 14 on the agenda, Eighth Amendment to
the MOU, dated March 28, 2000, and effective as of
February 29th, 2000, extended the MOU for two months
to April 30th, 2000. And this was the last of the
extensions of the agreements where we have specified
an amount that we can take for the upcountry water
system. We've been going by a mutual understanding
since then. Okay.
Item number 15 on the agenda is the MOU
Concerning Settlement of Water and Related Issues,
dated April 13th, 2000, by and between the Board of
Water Supply, County of Maui, Alexander & Baldwin,
Inc. Now, this agreement has a lot of different
points. And these are the people that signed it. I'm
only covering the areas as they relate to the
upcountry area and that's specifically Wailoa Ditch
and the Hamakuapoko wells.
For the Wailoa Ditch, it increased our
allotment to 12 MGD with the option for an additional
4 MGD. If flows were low, the Board of Water Supply
would get a minimum of 8.2 MGD and so would HC&S also
get a minimum of 8.2 MGD.
The board would do a number of things
including initiating a stream flow monitoring program,
pursuing groundwater, keeping the reservoirs at 80
percent, pursuing additional raw water storage for
Lower Kula. And in exchange for the increased
allotment, A&B would get an appropriate allocation of
domestic water. And you can read the entire
agreement, it's actually on our website, too,
Mauiwater.org. And we would also be pursuing
groundwater.
That's the ditch actually when it's very dry,
the flow is very low.
The other portion of the agreement that I'm
covering together is regarding the Hamakuapoko wells.
And you can see the GAC filters that we have there for
the wells. We would -- at this time we had just
started using it, we began using it in 1999. We would
complete the reports and approvals required for well
usage and that would include things like Department of
Health. Alexander & Baldwin would convey the land and
the easements. And when the East Maui Water
Development Plan is completed, A&B will consider
participating in construction of pipelines from the
wells to Paia in exchange for water allocation and
again A&B would receive appropriate allocation for
domestic water for conveying the land and the
easements. And this is page 118 in your handout or
page 3 of the agreement. Okay.
Number 16 on the agenda. And this is the last
of Part A of the upcountry agreements. This one is
regarding the Kula Agricultural Park Water Reservoir
Agreement and this is dated December 30th, 2002, by
and among the County of Maui, East Maui Irrigation
Company, Ltd., and Alexander & Baldwin, Inc., through
its division Hawaiian Commercial & Sugar Company. And
this one basically says that we would upgrade the
pumps at Reservoir 40. We would be able to take 1.5
MGD there for the agricultural park and also for the
adjacent property which would also be used as an
agricultural park. And during times of drought, we
would require our water users to limit consumption.
So those are the 16 parts of the Upcountry
Agreements. The next part is the Kulamalu agreement,
source, storage and transmission. And under this one,
there are four agreements.
CHAIRPERSON HIRANAGA: Excuse me, Jacky.
Would it be appropriate to open up for questions on
the Upcountry first? Mike, do you have a question?
MR. VICTORINO: You have stated that most of
these agreements have expired and now we go by mutual
understanding and I have a difficult time with that
word "mutual understanding." Specifically give me
what mutual understanding exists between us, the
Department of Water Supply, HC&S, East Maui
Irrigation, because that's very arbitrary when you say
mutual understanding. So I would like you to get a
little bit more specific in that area.
MS. TAKAKURA: Well, we're simply still taking
water and still paying for the delivery of that water
in accordance with the agreements.
MR. VICTORINO: So that's how this mutual
understanding continues, basically predicated on these
agreements that have been set forth.
MS. TAKAKURA: That's my understanding. I
don't know if the director wants to add anything to
that.
MR. TENGAN: If you would refer to page 116 of
the Memorandum of Understanding Concerning Settlement
of Water and Related Issues, basically outlines what
has been done previous to this time with regard to the
Waialoa ditch, the Iao-Waikapu ditch, Hamakuapoko
wells, Central Maui Joint Venture, and the East Maui
Water Development Plan. And since most of these
agreements or a lot of these agreements have expired
by that time, the board if you notice that on the last
page, the board entered into an agreement with
Alexander & Baldwin to continue the terms of the old
agreement. And we've been operating as such since
then. I imagine that we do need to come to develop
agreements to address the issues covering this
document.
MS. PARSONS: Can you tell me, have we met all
the terms of these agreements that we were expected
to? And if not, how many --
MR. TENGAN: As much as we could, I guess. If
there were any major issues that came up during the
time, we worked it out with EMI and HC&S.
MS. PARSONS: But that's not my answer, as
much as we could. What is outstanding in these
agreements that we have not undertaken?
MR. TENGAN: Well, first of all, we haven't
developed the [inaudible] we haven't entered into an
agreement on the Wailoa Ditch. We're only operating
under this Memorandum of Understanding which is dated
the 13th of [inaudible]. I guess it's difficult to
say because conditions change and as an example it
makes reference to low flows, reservoir levels. So,
you know, as conditions change, we would try to abide
by the terms of the agreement.
One example I can point out today is that for
the past several weeks the Kahakapao reservoirs have
been way below 80 percent, but as best as possible,
you know, we've tried to reduce or maintain the lowest
level of output from those reservoirs in providing
water to the upcountry area. Every day we pump about
a half million gallons of water from the lower system
to the upper system. That's the best we can do.
MS. PARSONS: Have we like, on K on page 117,
have we developed and implemented a stream flow
monitoring program to provide the current baseline
data?
MR. TENGAN: I think this is part of the
program we're working with USGS on.
MS. PARSONS: And have we pursued the
implementation of additional raw water storage in the
Lower Kula system?
MR. TENGAN: We're working -- we have engaged
a consultant to do the preliminary engineering and the
preliminary studies and I believe he's going to be
addressing the environmental assessment issue also.
So we do have an existing contract on that.
CHAIRPERSON HIRANAGA: Yes, Clark, do you have
a question?
MR. HASHIMOTO: Yeah, I have a question on the
Kula Ag Park agreement, 123. I guess the agreement
says that it will take effect when the Board of Water
Supply upgrades the pump at Reservoir 40. So what's
the progress on that upgrading?
MR. TENGAN: The last discussions we had was
kind of addressing the issue as to whether we should
pump directly out of the reservoir or pump as we're
pumping right now because there may be some problems,
some engineering problems and operational problems in
pumping directly out of the reservoir. There could
also be problems with the design of the actual pump
stations. So the engineers are looking at that.
MR. HASHIMOTO: So then they are going to
change the agreement you don't pump out of the
reservoir -- what does that mean?
MR. TENGAN: I guess it would mean that if it
becomes impractical to pump directly out of the
reservoir, then we would have to give back to A&B and
EMI and look at coming to some kind of other
agreement.
MR. HASHIMOTO: Because I think I guess
Haleakala ranch wants to lease out some land to at
least one of the co-ops for additional lands for
farming. So I guess without the agreement, they won't
be able to get water?
MR. TENGAN: I would rather not answer that
question right now.
CHAIRPERSON HIRANAGA: Yes, Kenneth.
MR. OKAMURA: Is there a difference between a
Memorandum of Understanding and an agreement? And
what would that be -- what would be the legal standing
of each and what's the difference?
MR. TENGAN: I'll pass this on to our attorney
here. I'm not an attorney.
MR. KUSHI: Mr. Chair, board members, not
being around when these things were done, I really
can't fully tell you the intent. There is a couple of
people here that were.
But in terms of the legal differences, you
know, a full-on agreement has about 10 or 20 pages, it
has provisions for breaches, defaults, et cetera, et
cetera. Memorandum of agreements usually are
statements of intent, statements of future agreements.
However, you can interpret it either way. I think you
have to look at each document as it's written. But
the legal difference in our minds is that -- and
agreements usually -- full on 9-year agreements are
recorded. They encumber the land. Any subsequent
purchaser or anybody interested in the property knows
that this agreement encumbers the land. Memorandums
of agreements are usually done between parties who in
the future tend to agree or get into something. But
again, you have to look at every document by itself.
CHAIRPERSON HIRANAGA: Yes, Sally.
MS. RAISBECK: You know, I'm very glad Ken
asked that question because on the agreement -- the
memorandum of understanding -- oh, let me back up a
minute.
Do I understand from the director that all of
the agreements up to that April 2000 agreement are now
expired? Is that what you're saying here? The
agreements up to April of 2000, those are now expired.
I heard that twice.
MR. KUSHI: With the director's permission,
let me respond to that. In the agreement itself, the
Memorandum of Understanding dated April 13th, 2000,
on your page 117, subparagraph G, it says extend the
term of the MOU for 25 years. Now, what does that
mean? The original agreement was dated 1961. You add
25 years on that, it's 1989. The key agreement is
1973. You add 25 years to that, it's 1998. But this
thing was done in the year 2000. So again, the
question is what was the intent of the parties. Is it
25 years from the year 2000, or is it 25 years from
what year?
I would suggest you ask board member Hashimoto
and Nobriga. They signed this agreement. What is
their understanding? I can take it 25 years from the
year 2000.
MS. RAISBECK: Yeah, I'm not talking about
that one, though.
MR. KUSHI: I'm responding to your question.
MS. RAISBECK: I know. What I asked was all
of the previous ones I heard Jacky say and I heard
maybe it was the director say that those previous
agreements had expired. Did I mishear? Did I hear
wrong?
No, the previous agreements, now, do any of
the provisions in those agreements that are not in the
April 2000 settlement thing, are those still legally
effective or did they expire?
MR. KUSHI: Well, it's the department's
position that all agreements -- all agreements
previous to April of 2000 are still in existence.
MS. RAISBECK: Are still in effect.
MR. KUSHI: Otherwise, I mean, there would be
litigation by now. So we're taking the position we
still have a relationship with them and we're entitled
to take water.
MS. RAISBECK: And those are legally
enforceable --
MR. KUSHI: That's our position.
MS. RAISBECK: That's your position. Okay.
The April 2000 memorandum -- hold on. Yeah. The one
that was passed -- Memorandum of Understanding
Concerning Settlement of Water Related Issues. That
starts out they hereby agree to cooperate on certain
matters being discussed by the parties relating to six
topics. Actually, it's not -- it's the Waialoa ditch,
and the Hamakuapoko wells and the East Maui Water
Development Plan. All of those were presumably to do
with upcountry. And it says the implementation of
this memorandum will be pursuant to one or more
agreements to be negotiated and agreed upon as a
package. And I know it was an attempt to have an
agreement for settlement of one of the issues, the
Central Maui Source Joint Venture. There was an
attempt to pass an agreement about that, but it
failed. And I haven't heard of any other agreements
that have been presented to implement this Memorandum
of Understanding. So that was a question I asked Fran
a couple of months ago, is this memorandum -- and Ken,
I'm very glad he asked the question.
This Memorandum of Understanding is extremely
-- I mean it couldn't even be enforceable because when
you're saying an appropriate amount of domestic water
and it's not defined, and this whole thing I presume
is not recorded, this can't be an agreement, right?
MS. PYLE: It's a Memorandum of Understanding,
not an agreement.
MS. RAISBECK: Yeah, it's a Memorandum of
Understanding to be implemented in agreements to be
negotiated, correct?
MR. KUSHI: Well, all I can respond is the
document speaks for itself. It does say
implementation will be pursuant to one or more
agreements to be negotiated and agreed upon as a
package.
MS. RAISBECK: And they have not yet been
negotiated.
MR. KUSHI: I know of one, the Iao-Waikapu
ditch, but that's not part of the agenda item.
MS. RAISBECK: The Iao-Waikapu ditch --
MR. KUSHI: Iao-Waikapu ditch surface flow
waters.
MS. RAISBECK: Does have an agreement that has
been negotiated and signed and --
MR. KUSHI: Right. I believe the former
director, before he left, did enter into an agreement
with Wailuku Ag.
MS. RAISBECK: With who?
MR. KUSHI: Wailuku Agribusiness.
MS. RAISBECK: Was that a matter considered by
the board?
MR. KUSHI: No.
MS. RAISBECK: Oh. Okay. So the department's
position is that the previous agreements preceding the
April 2000 agreement, Memorandum of Understanding, are
still in effect, but that's a -- what word did you use
earlier, that's a -- informal or -- is it mutually
understandable, okay, mutually understood. Okay. And
the Memorandum of Understanding in April 2000 is to be
implemented in the future by negotiated agreements,
correct?
MR. KUSHI: Member Raisbeck, that's what the
document says. I can't speak outside of the
boundaries because I'm not privy to how this thing was
formulated. All I can respond to you is that the
department's position, and has to be the department's
position, is that we still have rights to these
sources.
MS. RAISBECK: What was that?
MR. KUSHI: We still have rights to these
sources based on previous agreements. Otherwise we're
out of our resource, you know. And in addition to
that, if the other parties -- if their intent is that
we have no agreements, per the agreement itself
they're supposed to give us at least a year's notice.
You know, to my knowledge we haven't had any year's
notice.
MS. RAISBECK: Okay. And they haven't had a
year's notice from -- well -- okay. Thank you.
CHAIRPERSON HIRANAGA: Yes, Ginny.
MS. PARSONS: My question is were any of the
drafters or participants in these contracts invited to
appear today so that issues like Sally is bringing up
might be addressed and cleared up as to if there is
any problems pending, because that's what it sounds
like we're looking for. And if they weren't invited,
could we recess for about 5 or 10 minutes and see if
we can't get a representative from A&B to walk across
the street and we can call Mr. Dowling's office and
see if Don might be able to join us when we start
talking about Kulamalu?
CHAIRPERSON HIRANAGA: I think the purpose of
this meeting was an informational meeting and I think
if there is need for clarification, we can request the
director to further research and to get back to us at
a mutual date. But at this point I'm not going to
agree to the request to invite officials from these
organizations, especially since they haven't been
given notice as to what the meeting was for. So I
think at the end of the meeting or some appropriate
time during the meeting you feel you need additional
information, we can ask the director to research that
for us.
MS. PARSONS: Well, then let's curtail some of
the questioning to just issues that we can answer and
not ones that we can't because it's taking an awful
lot of time beating a dead horse when you don't have
the other side, the other party over here to answer
the question as to whether or not this is a viable
contract.
CHAIRPERSON HIRANAGA: I'm sorry, Ginny, I
just don't see us wasting time at this point. I think
all the questions so far have been relevant. But I'll
take that into consideration.
MS. PARSONS: Thanks.
CHAIRPERSON HIRANAGA: Yes, Dorothy.
MS. PYLE: I guess I had a question kind of
along the same line. Since there is now a change in
what the board's responsibilities are and they're an
advisory board and no longer a decision-making board,
I really am interested in trying to get a grip on who
would be the responsible party -- whether it's the
council, the mayor's office, the Department of Water
Supply, or the private controllers of water systems on
Maui, who or which groups are the responsible parties
to begin these negotiations to truly establish an
agreement that goes beyond this Memorandum of
Understanding.
It seems to me that in listening to this, we
are all in a state -- a great state of denial about
how water on this island is used, who is responsible
for it, and so on.
It does seem also that around the world, not
just in the United States as well but in many places
around the world, there are large, very aggressive
private corporations going around buying water
resources up. And I really feel that this is a very
serious situation that we need to get our ducks in a
row where we really do know who is responsible and
have binding agreements that someone can't come in and
break into and really put us in a very bad situation.
So this is a question that I really would like
an answer, a seriously clear answer at the next
meeting. Thank you.
CHAIRPERSON HIRANAGA: I guess, Dorothy, you
directed that question to the director?
MS. PYLE: And to the corporation counsel.
CHAIRPERSON HIRANAGA: I don't know if he
would be able to provide that answer in that type of a
time frame because --
MS. PYLE: Who's responsible?
CHAIRPERSON HIRANAGA: Like you said, there is
a lot of confusion because of the charter amendment
and I don't know if it's the director's responsibility
to determine that, who is responsible.
MS. PYLE: Somebody has got to.
CHAIRPERSON HIRANAGA: I agree with you
somebody has to. We just have to first identify who
that person is. But if the director wishes to respond
to that at a later date.
MR. TENGAN: I guess we're having a little
problem here because we really don't know what the
intent of this charter amendment was and I don't know
that any thought was given in this area when the
charter amendment was developed. And so we have to
and corp counsel has to do the best it can as far as
interpreting the laws, the related laws within the
state as it relates to the charter amendment. And
this is where we're having I guess some difficulty.
MS. PYLE: Thank you.
CHAIRPERSON HIRANAGA: Yes, Ken.
MR. OKAMURA: I wanted to speak to this last
point was that I think the board still has, you know,
some power. I think it's a vacuum. But maybe we need
to, you know, show a little bit of more initiative in
that. I don't know if we can, but instead of saying
there is no, you know, we're just advisory, we can't
do anything --
MS. PYLE: I'm not saying that.
MR. OKAMURA: I think we need to move forward
and try to set some agenda, you know, create a
positive outcome.
CHAIRPERSON HIRANAGA: I would like to urge
the board to try to focus their questions on the
agenda items and not go off on other tangents so that
we can move this meeting along in an efficient manner.
Do you have a question, Sally?
MS. RAISBECK: Yeah, Mr. Chair. As far as
Item 16 on the agenda, that Kula Ag Park agreement,
which was signed by the mayor -- I automatically
question things that were done the last two days of
the previous mayor's terms because there were a number
of things done that turned out not to be the best
choices. And I really wonder who was consulted, if
anyone, besides the outgoing water director and the
outgoing mayor, about that agreement. And that would
make me want to look at it more carefully at some
date.
CHAIRPERSON HIRANAGA: I'm sorry, was there a
question?
MS. RAISBECK: Well, I'm just saying that I
would like to look at that one in detail at sometime
solely because it seems to me that it has not received
sufficient scrutiny from the board or any other --
CHAIRPERSON HIRANAGA: Thank you. If no
further questions, we'll take a short recess and
reconvene at 10:05.
(Brief recess.)
CHAIRPERSON HIRANAGA: Call the meeting back
to order. Jacky, do you want to proceed with
Kulamalu?
I'm sorry, we have a request from the public
to provide testimony regarding the upcountry
agreement.
MR. MAYER: Thank you very much, Kent. My
name is Dick Mayer and I'm speaking for the Kula
Community Association. I'm their vice president. Our
president is out of state today.
The association this week adopted a letter. I
would like to pass this on to you.
As we all know, there has been a long history
of water restrictions in the Upcountry region. The
water shortage problem has often been severe enough to
force the Water Board to place a moratorium on the
issuance of new meters and even to ask existing
residents to reduce their water usage.
Last year the water board adopted a new rule
permitting several thousand new meters from the
waiting list. However, new water supplies are not yet
available. New meters may mean limitations on the
ability of Maui's agricultural community to raise food
and earn their livelihood and further restrictions on
the ability of existing residents to use water.
Consequently, the board of the Kula Community
Association requests the County Administration, Water
Department and Water Board to please review the
recently adopted rule to determine the compatibility
of issuing new meters while others are being asked to
reduce their water usage.
The board and the Kula Community Association
looks forward to your examination of this matter.
And particularly as you're reviewing these
agreements, that you keep in mind the long-standing
shortage and looking at both the ag park as well as
the EMI agreements over the years, that we still do
not have adequate water and that this rule that was
adopted may interact with the various agreements and
how it does. We urge you to examine that. Thank you
very much.
CHAIRPERSON HIRANAGA: Thank you. Any
questions?
MS. RAISBECK: Yes, I have a question. Thank
you, Dick. What do you think is the most important
about the rule that was adopted giving out new meters,
what is the biggest disadvantage of that?
MR. MAYER: The major problem is that meters
are being issued out irrespective of the amount of
water that an individual will be using. I have a
neighbor who's apparently got a meter, he's building a
house right now with a huge swimming pool and seven
acres of landscaped grounds. So one meter is totally
irrespective of how much water is actually being
consumed, and yet we're asking residents during this
drought situation to cut back. And this is one
household, but there are dozens and dozens of houses
now being built all over Kula and the water meter list
will add on to that and we don't know what the impact
will be. There may be a need at some point, the board
hasn't done it yet, to say to farmers we're going to
have to ask you to cut back on your water usage
because there literally will not be adequate supplies.
MS. PARSONS: Would you be in favor of
restrictions on domestic use that would not allow
extensive landscaping as opposed to agriculture?
MR. MAYER: I don't think the association per
se -- we want you to examine that interaction between
-- I recognize this is only tangential to the main
subject matter of the meeting today, the agreements
and such. But I do wish that you would at least keep
that in mind as you look at this agreements and the
impact, rather than trying to play wordsmith what the
rule should be.
MS. RAISBECK: Thank you.
CHAIRPERSON HIRANAGA: Okay. I would like to
proceed on with the agenda.
MS. TAKAKURA: Okay, so what we just went over
was the agreements basically concerning our water
source, where we get our water for upcountry
customers.
The next is the second of the four agreements
and this is regarding Kulamalu, source, storage and
transmissions. Under this category, Item B, is four
separate agreements. The first one is the agreement
regarding the 1973 MOU, repairs to the Waikamoi water
system, construction of reservoir at Kamole Weir,
dated March 21st, 1996, by and among A&B Hawaii, Inc.,
through its division HC&S, the Board of Water Supply,
the County of Maui, East Maui Irritation, and
Kulamalu, Inc.
What this agreement basically states is that
the Board of Water Supply is limited to 8 MGD from the
Kamole Weir and the board shall not take any water
from the Kamole Weir when the ditch flow is less than
11 MGD. Just as an aside here, in my five years here
I think I've seen the ditch go to that level maybe
once or twice. And actually operationally we need a
higher flow so that there is enough head for the water
to come through the water treatment facility.
Anyways, when the ditch flow is that low, we shall not
take any water.
The limitations on withdrawal take effect when
Kulamalu starts to draw water from the system.
Another thing that the Board of Water Supply will do
is repair the Waikamoi Upper Flume as soon as
possible. We will also seek funding sources for a
reservoir at Kamole Weir and Kulamalu was to provide
some money for the design of that and we would proceed
with this as soon as possible.
One of the questions that had come up recently
were things that have not been consummated in some of
these agreements and here is an example. As you all
know, we do not have a reservoir, raw water reservoir
at the Kamole water treatment facility. That is
probably something that will not happen in the near
future. And that's for various reasons; one of them
is that that land there is prime income-producing
agricultural land and also it is a slope, it's on a
slope, it makes it very difficult to find a flat spot
for a water reservoir. So that's an example of
something that we haven't worked on in the agreements.
Okay.
Part 2 of the Kulamalu agreements. And this
is the agreement concerning the construction of a
storage tank, transmission line, and appurtenances,
and also development of a well. And this agreement is
dated March 21st, 1996. This one is a little bit
longer agreement. And it basically states that
Kulamalu and the Board of Water Supply will
participate together, work together in developing a
storage tank and a 12-inch transmission line.
Kulamalu is a project coming on line that would take
up about 305 acres and it was determined that the
current Department of Water Supply system would not be
able to adequately provide for the water needs of this
project. And that need was estimated at a little bit
over 0.5 MGD.
So Kulamalu and the board will work together
in developing the tank and the transmission line for
the project and also coming up with a source which
involved development and dedication of a well. The
details are in the handout.
There is actually five parcels that Kulamalu
was going to develop. The first part of this was, as
I had mentioned, the construction of a storage tank.
And Kulamalu had two choices; either they could pay
money to the board and the board construct it and that
amount was about $1.9 million, or they could do it
themselves, construct the tank and the pipeline and
then turn it over to us and then part of the upgrades
that we were planning on doing anyway, we would
reimburse them for. They chose to go with the second
option, they did it themselves. Of that tank, at
least 350,000 gallons would be reserved for them and
that's in gallons, that's their credit. With this
transmission line, the credit is in dollars and that
was approximately $814,000. And they already had the
storage credits of 91,000 gallons, according to the
agreement.
Also, in addition to the tank and the line,
they would drill a well within three years and that
would be to county standards. And once the Department
of Water Supply determined that everything was up to
county standard and the water was of -- met all the
Department of Health's tests, then we would accept the
ownership. And the source credits for the developer
would be 0.45 times the installed pump capacity, which
is the standard calculation that they use. And here
from the agreement on page 142 of your packet on page
8 of the agreement, the amount of source credit shall
be the amount of expressed in gallons equal to 0.45
times the installed pump capacity. And the minimum
would be 290,000 gallons, which is the average daily
use.
Now, the storage and the transmission credits
would only be for Kulamalu parcels. However, if the
well, the source, if there was excess credits for
that, that could be used by other Upcountry or Haiku
water systems and be in excess of what they needed.
All of this must be used within 15 years, so there was
a time limit here.
Okay. So that's the second agreement which
has a lot of detail about the project -- the tank, the
pipeline, and the well. And as you probably know, it
was a very good well. Our Kaupakalua well, which is
now in service, provides about 700,000 gallons per
day.
Continuing with the agreements, the third one
was on September 9th, 1999. Let me read you the title
of it. It's simply dated September 9, 1999, by and
between the Board of Water Supply and Kulamalu Limited
Partnership. And what this basically is about is that
they withdrew their request to use capacity in excess
of 738,000 GPD. And the Board of Water Supply would be
able to use this excess capacity above this amount,
above this 738,000 GPD for the public benefit to meet
the needs of farmers and others as well as drought
management. And I'm just reading from page 176 in
your packet.
Also, Kulamalu may not assign unused source
allocations or credits for land use that's not
permitted by the general plan or the community plan.
That makes sense. They must use their allocations by
the year 2021 -- 25 years -- and the well must be
complete by April of 2000.
And that's the well to the left when it was
under construction. That's the well pump. What you
see there, this is where the well is and that's what
you see now. And that's a one million gallon tank
which we've been using since August of 2000. Very
good source of water. Okay.
And the last portion of the Kulamalu
agreements is Number 4, Agreement for Purchase and
Sale of Water Source Capacity and Credit. So what
happened here was the Board of Water Supply purchased
the source credits. And this is from page 178 in your
packet. The Board of Water Supply purchased the
source credits from Kulamalu at $8 per gallon, and
that's for 100,000 gallons, so the purchase price for
the purchased gallons or source credits is $8 per
gallon for a total purchase price of $800,000. So we
received the right to this water and they also
released the compensation right for water used by the
board in excess of that pump amount of 738,000 per
day. So that's the fourth and final agreement that we
have with Kulamalu.
And the next part of this presentation --
we're going to take a break now and answer questions
about this?
CHAIRPERSON HIRANAGA: Yeah, why don't we do
that. Yes, Ginny.
MS. PARSONS: It was my understanding at least
a couple weeks ago that the county had not taken
dedication yet of this well. Is there a reason why it
hasn't been -- taken the dedication?
MR. CHANG: We just haven't followed through
with the formal dedication of the well.
MS. PARSONS: Is it our responsibility?
MR. CHANG: Yes.
MS. PARSONS: It is our --
MR. CHANG: Yes.
MS. PARSONS: So how long will it take for us
to take the dedication and get it finalized?
MR. CHANG: We could do it by the end of
summer.
MS. PARSONS: Thank you.
MS. RAISBECK: I'm sorry, I didn't get the
answer.
MS. PARSONS: By the end of summer he said he
could get it done.
CHAIRPERSON HIRANAGA: Yes, Kenneth.
MR. OKAMURA: I wanted to ask, Mr. Chairman, I
wanted to ask, how does the credit thing work? What
is that? Is there a definition for credit?
MR. TENGAN: The credits that are referred to
in Jacky's presentation makes reference to the water
system development fee. The water system development
fee is broken down into three components: Storage,
source, and transmission. Now, when the developer
puts in improvements, offset improvements to the
system to service his subdivision, then he may be
entitled to be credited for the improvements that he
puts in place such as the storage tank or well or the
transmission line to his project. So that's what the
credits are going to.
MR. OKAMURA: So this -- what they meant was
that we gave the -- Kulamalu got $800,000 in credit
towards whatever they owed or something like that, is
that what it meant?
MR. CHANG: I think that's --
CHAIRPERSON HIRANAGA: Herb, could you come
forward and use the mike?
MR. CHANG: Well, like George was saying,
there is three credits: Storage, source,
transmission. As far as the source transmission, I
believe the number was 730,000 gallons because they
developed the well and the agreement says they get --
I believe that 70,000 gallons is what they got as far
as the source credits.
MR. OKAMURA: So all that means is that if
they owed then money, they would pay the $800,000 less
-- they would be credited $800,000.
MR. CHANG: The situation was -- I'll try to
answer your question. We didn't have source for their
development, so they said -- they came to the board
and asked what if we develop this well and whatever
new waters that we get, we get like a bank account as
the source credits. And so they did this and this is
how much they got.
MR. OKAMURA: And how do they get it back?
Like how do they get it back, in what form?
MR. CHANG: When they develop their portion of
that project that they gave us the well for, as they
come in for water meters, we would deduct their
allocation.
MS. RAISBECK: Mr. Chair?
CHAIRPERSON HIRANAGA: Yes, Sally.
MS. RAISBECK: Could we at the next board
meeting have on paper for those of us who are less
familiar with the relationships of actual gallons of
water and source credits and if we could just have a
sort of accounting, for example, with this
subdivision, how much they spent for the well, how
much -- all of the different financial factors
involved and what they were credited for. Because I
found it almost impossible to follow when it's
presented, you know, sort of little bit by little bit
verbally. So if we could have it spread out on paper
so that we could look at it and understand what they
would have been charged or what they were charged and
what they're contributing and what the county is
getting out of this, I would really appreciate it if
we could have a more detailed written presentation so
that I could understand things more clearly. Thank
you.
MR. NOBRIGA: Mr. Chair, I believe all that
information is included in the pink book.
MS. RAISBECK: In what big book?
MR. NOBRIGA: The pink book.
MS. RAISBECK: Where is the pink book?
MR. NOBRIGA: Who brought the pink book?
MR. VICTORINO: I have the yellow one.
MR. NOBRIGA: I stand corrected.
MS. RAISBECK: I'm sorry, I don't --
CHAIRPERSON HIRANAGA: It's the Rules and
Regulations of the Board of Water Supply.
MS. RAISBECK: But that doesn't have an actual
accounting --
CHAIRPERSON HIRANAGA: It provides you the
formula for determining the credits.
MS. RAISBECK: But I'm talking about actual
numbers of dollars.
CHAIRPERSON HIRANAGA: For specific projects?
Or Kulamalu?
MS. RAISBECK: Well, this one at the moment.
CHAIRPERSON HIRANAGA: I'll discuss it with
the director, your request.
MS. RAISBECK: Thank you.
CHAIRPERSON HIRANAGA: Any further questions?
Jacky, you want to proceed with DHHL?
MS. TAKAKURA: Okay. So Kulamalu, those
agreements, were regarding providing water for the new
project.
Section C is similar because it's regarding
providing water for a new project and this is for
Hawaiian Home Lands, Department of Hawaiian Home
Lands. And there is actually only one here -- or two,
excuse me, so it's not so long. And I'm only covering
agreements that we have regarding Kula and Keokea. We
may have agreements with them for other areas, but
that's not going to be covered here.
The first one is the MOU dated December 8th,
1997, by and between the State of Hawaii, Department
of Hawaiian Home Lands, Department of Water Supply,
the County of Maui, and the County of Maui. And this
came about because people that had the lands and they
were starting to -- homeowners were starting to occupy
these properties. And so the county agreed to issue
bonds for $1.5 million for the Department of Water
Supply to use in the Lower Kula booster pump station
and storage tank. And the county would receive dollar
for dollar credit and the Board of Water Supply would
construct the tank and the pump station, it's a
2 million gallon tank, using the county appropriation,
and also the Board's own money, and that's what we
would do.
And the Department of Hawaiian Home Lands
would do the following. They put in a new 18-inch
transmission line from Naalae Road in Kula to the home
sites, put in two new booster pumps near Kula Kai
tank, three new reservoirs with two pumps, and all
improvements would be to standard. For their
contributions, they would receive water system
development fee credits. And notice this is what
they're doing are blinds and reservoirs. So when we
talk about the credits here, that would be for the
storage and the transmission.
Source, the Department of Hawaiian Home Lands
would pay. They would pay the source portion of the
water system development fee for the installation of
meters. And we would provide a half a million gallons
per day except during drought. And unlike some of the
previous agreements, this one would not have a time
limitation.
Here's the Lower Kula booster tank and pump
station in its construction phases. We're putting up
the walls and the roof. And what it looks like now.
It's on Olinda Road. And it holds 2 million gallons
of water.
Okay. The second agreement that we have with
Hawaiian Home Lands is regarding water credits. This
is the water credits agreement, dated December 9th,
1997, by and between the State of Hawaii, Department
of Hawaiian Home Lands, the County of Maui, Department
of Water Supply. Again it says we would commit a half
million gallons per day for the home sites except
during drought. No expiration date. And they would
have credits for their contribution for construction.
And like I said, no source credits. Okay.
So when people would come in for their
5/8-inch water meter, this transmission and storage
credits are there, so no payments would be required
for that, just for the source up to half a million
gallons per day. And also there would be $1,561,000
in additional credits because they increased the
transmission and storage capacity beyond current and
future needs. Okay. So they got credit for doing
that. Okay.
So those are the two agreements with Hawaiian
Home Lands. Okay. Water to new customers. And
finally, our last category is the DBCP settlement
agreement. This is a long title. DBCP Settlement
Agreement and Release of All Claims, signatures
completed on December 2nd, 1999, entered into by
plaintiff, Board of Water Supply of the County of Maui
on the one hand, and the Dow Chemical Company,
Occidental Chemical Corporation, successor-in-interest
to Occidental Chemical company, Occidental Petroleum
Corporation, Shell Oil Company, individually and DBA
Shell Chemical Company, AMVAC Chemical Corporation,
American Vanguard Corporation, Brewer Environmental
Industries LLC, limited liability corporation; Maui
Pineapple Company, Ltd., and Maui Land and Pineapple
Company, Inc. These are collectively termed the
defendants on the other hand.
The purpose of this agreement was to resolve
with finality the past, pending, and potential,
continuing, and future DBCP claims and to avoid the
expense of further litigation.
What this is all about is this chemical,
1-2-dibromo-3-chloropropane, has been found in certain
groundwater supplies. It is a nematocide which was
used on pineapple crops to kill the root worm that was
attacking the crops. It's been found that the harmful
effect -- the main harmful effect of the chemical is
to the male reproductive organs and it can also cause
kidney damage. And the EPA has determined that it's a
probable human carcinogen and they have a maximum
contaminate level which that can be found in water
which is 200 parts per trillion.
Use of DBCP began in the mid 1950s and it
stopped in 1979 on the Mainland, although it was used
in Hawaii until 1985. DBCP does not break down. It
migrates in the soil and that's how it would travel
from the surface of the soil down to the roots and
then eventually down into where the water is. And
half-life in water is 141 years. And it has been
found in West Maui at Napili A, which we don't use,
Honokahua A, Haiku, and Hamakuapoko wells.
And the Board of Water Supply pursued this
because the reasoning was that they did not want to
pass the cost of removing this to the future rate
payers and so they took this to court but reached a
settlement in which the defendants paid $3 million and
that was to cover the capital cost for the granular
activated carbon treatment facilities that we built at
Napili A, Lahaina, for the granular activated carbon
that we installed at Hamakuapoko wells, and other
related costs. They will also pay for the cost of
removing DBCP for up to 40 years and all capital costs
to install GAC filters for these four places. And
they cover all ongoing maintenance and operation of
those filters for 40 years.
Now, if we go out and drill more wells for
future wells that may be acquired or drilled, that
amount would be 90 percent for both capital costs and
the ongoing maintenance and operations for 40 years.
This agreement, this settlement, excuse me, expires in
the year 2039 and it is limited to 50 wells.
Now, I had mentioned that they will cover all
costs for the present wells. In terms of future
wells, if we want to drill a well, we must provide the
defendants with information on the presence of DBCP,
historic land use information and also the
hydrogeologic characteristics of that site. And they
have three weeks to notify us of either they don't
object to our site choice, we need to go do a pilot
test well, or that we shouldn't drill and should look
at another place.
Now, if the DBCP levels drop below the maximum
contaminant level, we may -- they can stop paying, the
responsibility to pay the operations and maintenance
is terminated. And that's only if the DBCP goes
beyond below the maximum contaminant level. And we
would have to first request permission from the Hawaii
State Department of Health to remove the granular
activated carbon filter. And if we got the okay from
the Department of Health and we didn't need the
filtration, then their responsibility would be
terminated.
So that's the basic tenants of that DBCP
settlement. That one is in its entirety on the
website, too, if you wanted to read it in more detail.
And in summary, those are the four agreements
regarding Upcountry water, agreements with EMI and
HC&S regarding our collecting water from their areas,
working with developers and other agencies to provide
water for new customers, and resolving DBCP claims and
avoiding further litigation.
Now, by working together with these other
organizations, we can continue with this mission to
provide clean water efficiently by ensuring, first,
the source of water for our customers so that when
they turn on the tap, there is the water. Adequate
water for new customers like Kulamalu and Hawaiian
Homes, without detriment to customers that are already
on the system, and also protection of water quality
for our future customers.
So those are the agreements in a nut shell and
I'll take any more questions.
CHAIRPERSON HIRANAGA: Thank you, Jacky.
Any further questions from the board? Yes,
Ginny.
MS. PARSONS: Does the DBCP affect any of our
reservoirs or just the wells?
MS. TAKAKURA: Just the wells.
CHAIRPERSON HIRANAGA: Can you speak up so the
rest of the attendees can hear you, please.
MS. TAKAKURA: The DBCP does not affect the
surface water; it's only found in the groundwater
sources. And that makes sense. If you think about
like Waikamoi, Piiholo, that's the native rain forest
so it wouldn't be there.
CHAIRPERSON HIRANAGA: Yes, Sally.
MS. RAISBECK: So if I understand this
clearly, any time we want to drill a well in an area
that is either where they grow pineapple or close to
that, then we have to worry about DBCP; but they can
say no, you can't drill a well there or if we do drill
a well there, they will pay for the activated carbon.
Is that correct?
MR. TENGAN: That's correct.
MS. RAISBECK: And do we have any plans at all
in future to drill wells adjacent to pineapple growing
areas?
MR. TENGAN: The East Maui plant is supposed
to drill waters in the Haiku area and, you know, these
proposed wells might have been -- potentially would be
affected by DBCP.
MS. RAISBECK: Okay. So they can stop us from
drilling them if they wanted to.
MR. TENGAN: I'm not sure what you mean by
"they."
MS. RAISBECK: Well, the defendants in this
suit. But also isn't there some kind of court order
that we can't use the H-Poko wells because of the DBCP
unless there is a drought? What is that --
MR. TENGAN: I don't think the court order has
any reference to DBCP. If it's related to the East
Maui issue.
MS. RAISBECK: What is the court order about
-- about the H-Poko wells, why is it that we are
limited in our ability to use those?
MR. TENGAN: My understanding is that the
court order states that upon the declaration of an
emergency by the board, the department can pump water
from the well into the Upcountry system.
MS. RAISBECK: Yeah, but how come -- how come
the court said that? How come we can't use --
MR. TENGAN: I don't know. I'm not the court.
CHAIRPERSON HIRANAGA: Sally, correct me if I
am wrong, but I think it relates to the lawsuit
relating to the East Maui water plant as far as use.
MS. RAISBECK: But what's the lawsuit -- what
grounds?
CHAIRPERSON HIRANAGA: It's still pending.
MS. RAISBECK: No, no, I'm saying why was that
limitation put on the use of the water?
CHAIRPERSON HIRANAGA: Well, there is two
issues. One is DBCP which is separate from the use of
the wells. One is quality water and one is use of the
water.
MS. PYLE: It's the aquifer, perhaps the whole
concept of taking water from this area --
CHAIRPERSON HIRANAGA: Which is part of the
East Maui water plan.
MS. PYLE: It's not that the water is
contaminated.
MS. RAISBECK: From H-Poko wells.
CHAIRPERSON HIRANAGA: There's two issues.
What is DBCP and one is drawing from the well for --
MS. RAISBECK: I'm sorry.
CHAIRPERSON HIRANAGA: If I'm not mistaken,
it's two separate issues.
MR. TENGAN: Yes, the Hamakuapoko wells
involved [inaudible] one is with the East Maui plan
and the other is with the DBCP. And we're discussing
the DBCP today in today's meeting.
MS. RAISBECK: Okay. I must have confused two
things because I thought one of the reasons that we
weren't allowed to draw water from those wells was
that they were contaminated, but you're saying that's
not true.
CHAIRPERSON HIRANAGA: Well, they have
installed the GAC scrubbers.
MS. RAISBECK: They what?
CHAIRPERSON HIRANAGA: They installed those
GAC scrubbers to clean the water. So the water is
potable, yeah.
MS. RAISBECK: Oh, okay. I misunderstood.
Thank you.
MR. TENGAN: Yes, Mr. Chair, we do have DOH
approval to use the water into the systems.
MS. RAISBECK: Thank you.
MR. VICTORINO: Mr. Chair. Just for some
clarification. If you read this very carefully,
Sally, just for clarification, it does not restrict us
from using it; it says either there will be no
objection and/or a pilot test well will be needed, or
an alternate site should be considered. So there is
not saying you cannot use it; it is saying that you
must be -- within 21 days they would give back a
notice to us saying what they want from us. Okay. So
it's not that we cannot drill new wells, but if we
were to drill new wells, they would be entered into
this process because they also would be contributing
expense or cost to do these new wells up to 90 percent
as it was shown to operate and as well as drill the
new wells. So just so that we get that clarified that
we're not going to be stopped.
MS. RAISBECK: So you're saying they don't
have veto power, but they are able to ask us to
consider carefully some other site.
MR. VICTORINO: Yeah, they have 1 to 3 on the
last page of the outline that Jacky presented to us.
MS. RAISBECK: Thank you.
MR. VICTORINO: Furthermore, I'd like to --
okay, I'm sorry, George. Go ahead, George, let's
dispose of this subject.
MR. TENGAN: I just wanted to add that if we
-- if we are asked to go to an alternative site, then
the defendants would have to participate in the cost
of that alternative site.
CHAIRPERSON HIRANAGA: Yes, Jacky.
MS. TAKAKURA: I just want to point out, this
is a picture of Hamakuapoko and the GAC filters are
right there and right there. And it filters the water
from Hamakuapoko 1 and 2. And the water comes into
the GAC with detectable amounts of DBCP and it leaves
the GAC with non-detectable amounts. So it becomes
within all Department of Health standards.
MR. VICTORINO: Thank you, Jacky. In closing,
Mr. Chair, I would like to point out that I would like
to thank Jacky and the board for putting this
presentation together because I think it's very
extensive, it gives us at least a good understanding
how we have progressed to this point. A lot of
agreements and memorandums of agreements and other
things have entered in since 1961. But Maui has grown
tremendously since 1961 and so the demographics keep
changing.
Now, I think there are board members that have
specific questions on certain areas which down the
road can be answered in other meetings, but I think
this for me especially has cleared up a lot of
questions that I had in respect to some of these
agreements. It doesn't make me an expert in it, but
it also helps me at least get a clear understanding
and I hope it does for the general public and those
that are here that our hands sometimes can be tied
based upon these agreements and it's nothing against
anybody in this room or where the power may lie; it is
really where history has taken us to this point and
hopefully we can make a difference with our advisory
capacity to give those powers-to-be the right
direction we need to continue for the County of Maui.
CHAIRPERSON HIRANAGA: Yes, George.
MR. TENGAN: Mr. Chair, if you're ready to
close, I too would like to thank Jacky. I thought she
did a bang-up job on such short notice and because
she's quite busy with other things also.
And I would like to also add that not much has
been said in the past about the efforts of our past
director with regard to this DBCP issue. I can
remember several years ago when the clock was running
out, the director grabbed this issue by the tail like
a pit bull and he started making phone calls and
started contacting attorneys on the Mainland to pursue
this lawsuit against the manufacturers. And he was
very successful in this effort and so I would like the
people of Maui to know that it's because through the
efforts of our past director and I think, you know,
not enough credit has been given to him and I think we
should do that at this time.
CHAIRPERSON HIRANAGA: Okay. Ken? Mike?
MR. NOBRIGA: Thank you, George. Also wanted
to thank you for the accommodations given to
Ms. Takakura and also thank Ms. Cathy Howard for
xeroxing this information that can still read 'em.
Outstanding. Outstanding. That's all. Kenneth.
MR. OKAMURA: Yes, I would like to say, too,
it was really good, the presentation.
The one question I had was that the reservoirs
that Department of Hawaiian Homes was supposed to put
in, did they put it in and what was the capacity of
those reservoirs?
MR. TENGAN: I think the reservoirs you're
referring to are the on-site reservoirs that were
constructed in this subdivision.
MR. OKAMURA: So they have their own
reservoirs, three reservoirs supposedly.
MR. TENGAN: I believe so.
MR. OKAMURA: So they already built those
things?
MR. TENGAN: Yes.
MR. OKAMURA: I see.
CHAIRPERSON HIRANAGA: Yes, Sally.
MS. RAISBECK: Mr. Chair, I would like to say
that if there are any members of the audience who want
copies of any or all of these agreements, I am very
happy to lend my copy here so that they can xerox it
more cheaply than they can through the department.
Twenty-five cents a page always seems excessive to me.
If anybody wants to see in more detail these
agreements, I'll be happy to lend my copy.
And the other thing, Mr. Chair, I feel that it
is -- as I've said several times at previous meetings,
it's very essential that we -- that we have an
opportunity to give advice about changes that are
needed in our rules. And I think apparently at this
point there is not sufficient movement within the
corporation counsel's office and I wondered if -- I
would like to make a motion that this board or the
chair of this board send a letter to the mayor
expressing how important it is that it should be
prioritized that our rules be modified in accordance
with the charter -- with the charter amendment.
So that would be my motion, that the Chair
send a letter to the mayor requesting priority for
this action by the corporation counsel's office.
MR. NOBRIGA: Mr. Chair, the letter has
already been sent.
MS. RAISBECK: I did not receive a copy of it.
MS. PYLE: Neither did I.
CHAIRPERSON HIRANAGA: It's not an agenda
item, but I will consider placing it on a future
meeting's agenda --
MS. RAISBECK: Could we, with permission of
the board, consider it today so that we could perhaps
have some action by the next official board meeting?
CHAIRPERSON HIRANAGA: Like I said, I'll
consider it for a future meeting. And I'll look into
further. Mike referenced there may be a letter, so --
MS. RAISBECK: May I have a copy of that
letter?
CHAIRPERSON HIRANAGA: I'll look into it.
Thank you. Any further questions regarding the agenda
items?
MR. OKAMURA: Okay. So you're talking about
just the agenda items right now on this one?
CHAIRPERSON HIRANAGA: Right.
MR. OKAMURA: Are we going to -- okay.
MS. PYLE: May I ask, I don't know what the
actual methodology for this is. I know that the
agenda has to be publicized at least a week before --
I think it's a week previous to the meeting. Is there
any traditional policies or ways in which the agenda
is developed? Is this done strictly by the Chair? Is
there a request for agenda items that is e-mailed
around to the board members or a letter or some kind
of concept like that? How do we determine what the
agenda for the meetings are going to be?
CHAIRPERSON HIRANAGA: Good question since
this is my first meeting as Chair and I haven't really
gone through the process. But my understanding is
it's the chairman's prerogative to determine what is
placed on the agenda. Corporation counsel can correct
me if I am wrong.
MR. KUSHI: You're correct, sir.
CHAIRPERSON HIRANAGA: Thank you.
MR. OKAMURA: I just -- I think before the
meeting adjourns, are we going to have -- I wanted to
know if -- I don't know if this is the right time to
bring this up, but I wanted to ask if at some future
meeting, hopefully not too far in the future, you
would consider putting on the agenda the issue of the
meters that Mr. Mayer talked about earlier. The
particular rule. Just a request. Thank you.
CHAIRPERSON HIRANAGA: I guess -- I don't know
if this is appropriate, but as a new Chair, I invite
all my members to contact me, preferably e-mail, I
don't know if that's appropriate, with their requests
for agenda items rather than bringing it up during the
formal meeting. You can contact me and say there are
certain issues that you would like to see placed on
the agenda and I'll determine if I agree with that
request or not.
MS. RAISBECK: Mr. Chair, could there be on
each agenda an item perhaps at the end in which
members could make requests for additional -- for
agenda items in future?
CHAIRPERSON HIRANAGA: Like I just said, you
know, you can contact me and we can discuss your
concerns about what you want to be placed on the
agenda. But I don't believe that placing it -- making
these requests in public -- in the public meeting is
that good because -- but I'll talk to corporation
counsel about that. You're requesting certain things
be placed on the agenda.
MS. RAISBECK: No, I'm just saying that at the
end of -- for example, we have standard on the agenda
we have announcements.
CHAIRPERSON HIRANAGA: Yeah.
MS. RAISBECK: And if there could be at the
end of each agenda a heading that just said requests
for agenda items, that would enable to people to
simply list them and --
CHAIRPERSON HIRANAGA: Requests by the board
members for agenda items.
MS. RAISBECK: Oh, yes, definitely by board
members.
CHAIRPERSON HIRANAGA: I have no objection.
Either method, you know. You can contact me or you
can present it at the --
MS. RAISBECK: Thank you.
MR. KUSHI: Mr. Chair, if I may, I need to
respond to your comment that interaction with the
board members outside of the board meeting by e-mail,
it's no problem between you and one of the board
members. I need to caution you right now, if any of
you do send e-mails, do not send to more than one
board member that becomes an ex-party communication.
I've been instructed to write an opinion on this.
Hopefully it will be at your next board meeting about
electronic communications between board and commission
members, all the board and commission members, by
e-mail outside of the board meetings. So that being
the case, I just wanted to tell you in advance.
CHAIRPERSON HIRANAGA: Thank you.
MR. NOBRIGA: Mr. Chair, move for adjournment.
MR. VICTORINO: Second.
CHAIRPERSON HIRANAGA: Motion for adjournment.
Seconded by Mike. This meeting is adjourned. Thank
you.
(The meeting was adjourned at 10:55 a.m.)
IWADO COURT REPORTERS, INC.
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County of Maui
P.O. Box 1109
Wailuku, HI 96793-6109
Telephone (808) 270-7816
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