BOARD OF WATER SUPPLY
COUNTY OF MAUI
REGULAR BOARD MEETING
Held at the Kahului Shopping Center, Kahului, Maui,
Hawaii, commencing at 9:00 a.m. on August 28, 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 M. HIRANAGA
VICE CHAIRMAN: MICHAEL P. VICTORINO
BOARD MEMBERS: KENNETH M. OKAMURA
DOROTHY R. PYLE
SALLY RAISBECK
GINNY PARSONS
MIKE NOBRIGA
CLARK HASHIMOTO
DEPUTY CORPORATION COUNSEL: EDWARD KUSHI, JR., ESQ.
DIRECTOR: GEORGE TENGAN
BOARD SECRETARY: CATHY HOWARD
* * * * *
CHAIRPERSON HIRANAGA: Call the meeting to
order. First I would like to recognize attendance.
We have Kenneth Okamura, Sally Raisbeck, Clark
Hashimoto, Mike Victorino, Mike Nobriga, Ginny
Parsons, Dorothy Pyle, and Brian Miskae present.
Stacy Crivello I guess is excused.
Are there any announcements at this time?
MS. RAISBECK: Yes, I have some announcements.
(Brief recess.)
CHAIRPERSON HIRANAGA: I would like to call
the meeting back to order.
MS. RAISBECK: Yes, Mr. Chair. I have several
announcements. On September 3rd, the Council Water
Resources Committee meets at 9 a.m. It will consider
the Board of Water Supply rules. There is a letter
from the Council Chair that I haven't yet had a chance
to read that will also be considered by them.
On September 5 and 6, Maui Tomorrow and the
Department of Health and other organizations are
putting on a two-day Watershed Awareness Involvement
Conference at MCC on a lot of very interesting panels
and I'm looking forward to it very much. They're also
getting wider participation by offering free food,
music, and door prizes.
On September 4, 7, and 14th, that same
conference is sponsoring some watershed hikes. On the
4th in the Iao Stream -- well, in one of the
tributaries to the Iao Stream, on the 7th in the
watershed above Waiehu, on the 14th in the watershed
above Waikapu.
I believe it is still true that on September
18th, the deputy director and Jacky Takakura are going
to be speaking at the Haiku Community Association
meeting. I believe that's still true.
On September 22nd, that is the deadline for
EIS comments on Maui Land & Pine's Upcountry Center.
The plans include -- according to the Maui News, the
plans include drilling a well and turning it over to
the county with an arrangement like the previous
arrangement with Everett Dowling. And I wondered if
the director is sending comments on that EIS.
On September 25th, that is the 30-day deadline
for intervention for Maui Land & Pine's request for
urban and rural reclassification by the State Land Use
Commission for the entire watershed above Kapalua. I
was absolutely amazed at the size of what they're
asking for urban and rural reclassification.
My last announcement is that I want to thank
Jacky Takakura, David Rezents, Paul Seitz, Walt Hagar,
and John Kahalehoe who gave several board members,
including me, a wonderful tour of the upcountry water
system and the Keanae-Hana water system. I was
enormously impressed by the water treatment facilities
upcountry and they gave us a very thorough, very
professional and very interesting tour. So thank you
very much. That's all.
CHAIRPERSON HIRANAGA: Any other
announcements?
Next agenda item, approval of minutes. Are
there any corrections to the minutes of June 26, 2003;
July 10, 2003; or July 24, 2003?
MR. VICTORINO: I move to accept.
MR. HASHIMOTO: Second.
CHAIRPERSON HIRANAGA: Move to accept by Mike
and second by Clark. Any discussion? All in favor of
accepting the minutes, indicate so by saying aye.
[Chorus of ayes.]
CHAIRPERSON HIRANAGA: Thank you. Anyone from
the public that wishes to provide testimony at this
time? Elliott Krash.
MS. KRASH: Thank you, Mr. Chairman. On
August 14th, Barbara Long sent a letter to the
chairman and to the members of the board and I would
like to read that letter for you. I'm testifying in
regard to the item on water availability, Iao aquifer.
I think that's VI(A) on your agenda.
"Dear chairman and board members. Since the
vote on the charter amendments that placed the
Department of Water Supply under the Mayor's office,
the function of the water board has been in limbo to
the detriment of Maui's residents and taxpayers. I
believe it would be appropriate to place the following
questions on the next board agenda to enable full
discussion and progress towards a determination of
what, if anything, the water board can, should, and
will do to assist the administration, the council, and
Maui residents.
"How can the water board best serve its stake
holders? Is it feasible for the board to help
determine policy in the distribution of Maui's water
resources? Can the board be a funnel for public
concerns and ideas to evaluate such questions as how
to best ensure water goes to development projects that
aid people who live and work on Maui? Does the
department or the administration have a policy to
determine allocation? Can the board help? Can the
board work with the long-range section of the planning
department to determine need and infrastructure for
desired growth? Could the water board be the venue
for public participation in this crucial process?
With affordable housing demand high, supply low, can
the board work to create availability of water in
appropriate areas?
"Water, its availability or nonavailability,
is at the crux of Maui's future growth and economic
development. Rather than the nine board members
volunteering their time without direction, wouldn't it
be better to define the board's and the department's
part in responding to the present situation which
could in a Honolulu Advertiser story of August 10th,
according to economist Leroy Laney could grind growth
to a halt.
"In addition, because the role of the board is
not defined at present, does it make sense to move
their meetings to a Wailuku location more convenient
for public participation? And for this same reason,
what is the current need for verbatim transcript by
court reporter when the board's deliberations are not
meeting any present policy or advisory requirement?
"Thank you for your consideration of this
matter. I would appreciate being notified of the
board's agenda addressing my questions. With Aloha,
Barbara Long."
CHAIRPERSON HIRANAGA: Any questions for
Elliott? Thank you.
Anyone else who wishes to provide public
testimony at this time? If not, I'll close the public
hearing.
Next agenda item is Unfinished Business,
continuation of discussion and possible action
regarding the designation of the Iao Aquifer.
MS. RAISBECK: I think these agenda items
today are extremely important. They also might run
long. I know Dorothy has to leave at 12:00 or 12:30
and I wondered will we have -- do other members have
time commitments that might give us -- that might
break up our quorum at sometime?
CHAIRPERSON HIRANAGA: I have not been
informed of anyone's time requirements.
At this time does the department wish to add
to their previous presentation?
MS. KRAFTSOW: I guess I was asked to explain
the items on pages 3 and 4 of your agenda. As we
stated at the previous meeting, the information given
to you was estimates and these estimates, as more
information comes in, are changing.
So I have redone a couple of the calculations
here of remaining water and did one to reflect the
fact that -- on page 4 to reflect Sally's question. I
did not reduce it to 3.6. I reduced it to 4 because
it was still way less than 90 percent of the aquifer.
That was one option. And I called the State Water
Commission about it and he said well, you know, we
would in the long haul of course recommend that you
follow your hydrologist's recommendations, but in the
near term the pumps were sized for the capacity. So I
went back and checked pump capacity and went oh my.
Until Kupaa is in -- I think Kupaa should be in very
shortly -- but until it's in, we actually have 6.6.
So I did another calculation to let you know
it's revised downward based on the capacity. And so
that's at the bottom right-hand of page 3 of your
packet. That's what I would say is realistic
currently because it is installed capacity based on
well tests.
In addition, we had and not reflected here of
those that we had as of the day before yesterday that
were entered that were 15 reservations that were
actually installed the day after designation. So that
left the outstanding reservations down to 551,150.
We did receive a request from the Department
of Hawaiian Home Lands to be added to the reservation
list, which would bring reservations up if it is
approved -- that is still to be determined, looked at
-- to 648,150. But they were in the pending
subdivisions list.
The other thing that came out of that request
for reservation from Hawaiian Home Lands, they were in
the independent subdivisions list as 68,400 gallons.
That was for 114 lots. The request they made is now
is for 118 lots with an irrigation. So instead of
68,400, that would be 97,000 gallons, estimate. And
so that would bring pending subdivisions to 1.981 --
1,981,600 --
MS. RAISBECK: Excuse me, Mr. Chairman, I
don't know what figure she's referring to here. Could
she specify a little bit more?
MS. KRAFTSOW: Oh, okay. Sally, if you look
at your bottom -- on page 3, the bottom left was the
initial calculation, right? And if you look at
subdivision -- or even the bottom right say and you
see the subdivisions pending was 1.953. With the
updated information on Waiehu Kou, that number would
be changed to 1.982 I guess or actually 18916.
MR. OKAMURA: What figure are you talking
about?
MS. KRAFTSOW: Subdivisions pending. If you
look at the bottom right-hand slide on page 3, where
it's 1.953.
MR. VICTORINO: That is to be changed, is that
what you're saying?
MS. KRAFTSOW: Yes, because Waiehu Kou is
asking for -- what they're asking for includes -- I
would estimate it at 97,000 gallons a day instead of
68,400 as I had it listed.
MR. OKAMURA: So it should be changed to what
figure?
MS. KRAFTSOW: 1.9816. So you could round it
to 1.982. There are also numerous meters that have
come in to be installed that we just obtained
yesterday that we're still entering. And some of
those are from the reservations, others are from
subdivisions pending, others are from bonded, so we'll
have to tease that out as we get the data and we have
it about halfway entered so far. That's all I have to
say right now.
CHAIRPERSON HIRANAGA: One point of
clarification. So what's remaining? Zero point --
negative 0.708 to 0.522, what does that mean?
MS. KRAFTSOW: Oh, okay. That would be if you
counted pending subdivisions plus other subdivisions,
that are no longer pending, they have received final
approval and they have all their approvals but they
may not have installed a hundred percent of their
meters yet so they're still installing meters. So you
would add the 1.953, or now 1.9, whatever, to the
1.143 and that totals 2 point something. And then you
subtract that from the 1.388, right, and you get a
negative.
So that means if all pending subdivisions were
to be built now -- which they're not always built
right away, some of them are built 10 years later.
But if they were all built out right now, we would be
in a negative situation already.
And the other is if you look at only those
subdivisions which have already been approved and
bonded, and/or either approved or bonded, so they have
put money down and we know they are going to be -- so
that's kind of a range.
CHAIRPERSON HIRANAGA: Ginny, you had a
question?
MS. PARSONS: We're basing these meters on
what, 600?
MS. KRAFTSOW: It varies, depending where it
is. So we use the standard. If it's a 5/8-inch
meter, we'll use 600. But if it's in Maui Meadows or
certain parts of Kihei/Wailea, empirically we know
it's higher so we'll use a thousand there per lot.
Depending on the size of the lot and if it's very
small --
MS. PARSONS: What I'm getting at is I
understand there is some new reservations that are
coming on, people are trying to upgrade from 5/8ths to
three-quarters, and I know we talked about that with
the mayer and he wasn't inclined to do that. Is there
any way that we can cut that three-quarters requests
back to 5/8ths and save some of the flow to put back
in here until such time when we get another source on
line?
MS. KRAFTSOW: That's a policy decision that
is made above my level or traditionally is made above
my level. I think it probably could be done. I don't
know if it would be done necessarily in every case or
only in certain cases.
MS. PARSONS: So we may be able to save some
of our flow for right now. Maybe that's a
recommendation we might want to make or consider from
the board level that we don't issue any upgrades from
5/8ths at this point until such time maybe as a new
source.
MR. OKAMURA: I have a question about like
what she was asking about the rates that you assess --
not assess, but the amount that you estimate each
meter is going to use. 600 gallons per month for a
5/8-inch meter, is that --
MS. KRAFTSOW: 600 gallons per day is -- it's
based on statewide system standards.
MR. OKAMURA: Okay. And you're saying some
places they use more.
MS. KRAFTSOW: Yeah. We do know -- when we do
-- these inferred reservations, it's not like somebody
is actually reserving that specific quantity of water.
But when we were trying to decide how to estimate the
reservations, we went through a lot of possibilities
because we know empirically we have the data, we know
certain regions of the island use considerably more
than standard, other regions use considerably less.
We know that we can't control once a meter is out
there whether the person is going to use it more or
less. So we wanted to be conservative, but if we went
purely by capacity it was just some -- I can't
remember the number, but it was just huge, it's like
there is no way these meters would ever use that water
really.
So what we did was we started to go with per
acre standards. And for single-family residences, it
really is pretty much either standard or what you know
empirically about the area. We have charts and we can
run a query at any point in our computer that says
okay, break it down by this region, how much water it
uses on the average.
And then for larger meters, if it's not a
single-family meter, if it's larger meters, there is
some judgment involved and it's me that's making that
judgment. And that is if it's a commercial operation
say in Kihei, I look at other one-inch commercial
meters in Kihei and look at what's the average median
of that. I try to go a little bit above the average
as an inferred reservation, just to be conservative.
Things like that. So there is some judgment and staff
consideration.
MR. OKAMURA: So you base it on an average.
But then I guess the problem comes when it's a dry
month and you have the worst case where people need to
use a lot more water, then we go over the limit and
that's where we run into trouble.
MS. KRAFTSOW: Right. I actually go -- if the
per acre standard is more than the average, I go with
the per acre standard. But in some areas, the per
acre standard comes in less than the average, then I
don't go with the average. I go with the 75 percent,
one of the higher range but within the range.
MR. OKAMURA: But you could go with like a
worse case scenario, too, you could go with that.
MS. KRAFTSOW: Yeah.
MR. OKAMURA: Which would really, you know,
would be really high estimated. Maybe we should be
doing that if the dry times of the year are times that
get us into trouble as far as overdrawing. What would
be -- would that be possible?
MS. KRAFTSOW: I think we try to build a
safety factor in by going with something towards the
high end of the range. We look at the average, the
median, and the high and low end of the range. And we
make pretty much a judgment call that's usually
between the average and the high end. It's not
usually the highest of the high end because there is
usually a few just really outrageous [inaudible] --
MR. OKAMURA: Because already with the
existing meters, we went above the limits, right, last
month or so?
MS. KRAFTSOW: You mean the one project that I
referred to?
MR. OKAMURA: What I meant was in terms of
total usage, we went like 19.4 million gallons.
MS. KRAFTSOW: Oh, right.
MR. OKAMURA: And that's what we want to try
to avoid. And so I guess the other question I would
have is that people already hit the limit and we're
going to give out some more meters, there is no way we
can say that we're not going to, you know -- we're not
putting ourselves in worse jeopardy by doing that,
maybe we have to follow our commitments, but --
MS. KRAFTSOW: I think that what was decided
sometime back, I forget the date of the memo, we were
using slightly earlier estimates, we didn't have much
but we had to go with the best numbers that we had at
the time, right. And we took what was estimated
remaining available at the time and cut it basically
in half and said we'll give out meters up to that
amount and now we're just trying to track if we're up
to that amount. And we could revise it further
downward, but it was only I think another 800,000
gallons after designation that we were going to give
out.
MR. OKAMURA: Thank you. I think we need to
be really conservative, knowing that what happens when
it's dry. I don't know if that's for you to decide or
who is to decide that.
MS. KRAFTSOW: I should say also that as far
as reservations go, except for this possible Waiehu
Kou question because it's DHHL, it's done, I'm not
even looking at the meter issuance now until after the
fact. So.
MS. PARSONS: What do you mean, it's not --
MS. KRAFTSOW: We're no longer issuing
reservations. And the only reason that Waiehu Kou is
being considered is because of Hawaiian Home Lands,
and that will be, you know, and so I'm not reviewing
or issuing any further reservations in Central Maui at
all right now. And I think engineering is only
following up to what the memo stated we should do and
we're just trying that.
MR. VICTORINO: Ellen, a couple of questions I
have for you. As Mr. Okamura has stated that we
should look at the high end and use that as a basis,
we've always used a running average as far as the Iao
was concerned, right?
MS. KRAFTSOW: For pumpage we use a moving
average.
MR. VICTORINO: So that's right. Second
question I have is when is Kupaa going to come on
line? You said shortly; what is shortly?
MS. KRAFTSOW: Kupaa?
MR. VICTORINO: Kupaa, I'm sorry.
MS. KRAFTSOW: By the end of the year, I
believe, yeah? It's scheduled for completion within
this fiscal year.
MR. VICTORINO: See, these are the kinds of
things that I think sometimes makes it difficult to
make decisions when you don't have specific time
frames. I understand there are things that hold back
projects, but, you know, that's why when you say
shortly, is it six months, is it a year, and more of a
specific time frame I think is important for the
public and us to know to make decisions for the
future.
Secondly, in this area right now, when we're
talking we stopped taking all new reservations and I'm
correct, right? That was the mandatory order from the
mayor, no new reservations. But right now you
mentioned that you're catching up with all the present
reservations that were in the system.
MS. KRAFTSOW: They're not reservations.
These are -- we stopped taking reservations.
MR. VICTORINO: Okay. That's been determined.
MS. KRAFTSOW: And then we had gotten -- for a
while we weren't getting -- what we're trying to do
now is track what meters have been issued because they
were going to continue issuing meters for those ready
to accept service up to another 800,000 gallons.
MR. VICTORINO: At this point.
MS. KRAFTSOW: As of the date of the decision
when it was announced, yeah. And so now what we're
trying to do is track the meters that were issued and
how much water they represent.
MR. VICTORINO: And then finally, with that in
mind, that 800,000 gallons that you just referred to,
what do you anticipate from all your tracking, best
estimate right now, will be actually used?
MS. KRAFTSOW: I can't answer that right now.
We just got the stack yesterday and we're still --
MR. VICTORINO: When would that become
available?
MS. KRAFTSOW: I'm hoping within the next --
I'm hoping within a week.
MR. VICTORINO: Within a week. So by our next
meeting, we hope to have that kind of information.
MS. KRAFTSOW: Right. But that will change --
can change daily as meters are issued, right, we go
back and we track them and look at them.
MR. VICTORINO: So right now we're just --
MS. KRAFTSOW: It is -- it's a moving target.
It will be a moving target until it stops, yes.
MR. VICTORINO: And when you say stop, that
means when all these present reservations that are in
have been issued -- but you mentioned something about
10 years down the line -- we have subdivisions
scheduled for 10 years down the line.
MS. KRAFTSOW: No, what I'm saying is that
sometimes projects, these large projects --
MR. VICTORINO: Yes.
MS. KRAFTSOW: They do a subdivision, a large
lot subdivision.
MR. VICTORINO: Right.
MS. KRAFTSOW: And it's really the large lot
subdivision is not going to generate any water use in
and of itself. Then they are going to do another
large lot subdivision and gradually -- it's only
really when they get down to lots. And then even when
they're doing a phase that has actual lots that
they're really going to sell, sometimes that phase can
take some years to fully build out and sell and
market.
MR. VICTORINO: I understand that. But --
MS. KRAFTSOW: So the water -- so you don't
see the actual water demand either until the thing is
fully built out.
MR. VICTORINO: Okay. So I understand that
part. However, part of the reservation is that
speculatory number of lots that will come out of that
subdivision.
MS. KRAFTSOW: No, because I'm talking about
subdivisions which do not have reservations. Okay.
Reservations, we had 565,150 gallons worth.
MR. VICTORINO: Okay.
MS. KRAFTSOW: Of reservations, period. Plus
maybe another 97,000 for Waiehu Kou. That's
reservations. That's all that we normally, in the
water resources and planning division, that's all we
dealt with. That's reservations only. That was a
number, it was determined using best empirical data
and standards.
MR. VICTORINO: Okay.
MS. KRAFTSOW: In addition to reservations,
the mayor had requested because he want to know what
would happen if things that are not reserved --
because we don't issue a water commitment, period,
until somebody has paid for their meter.
MR. VICTORINO: Right.
MS. KRAFTSOW: And even a reservation, there
is some wiggle room put into the contract, okay.
MS. PARSONS: Pardon me. Can you explain the
commission's views between reservation versus
commitment? Because I don't understand that, and that
was real cloudy before. Because they don't
necessarily review -- they don't view a reservation as
a commitment, they said.
MS. KRAFTSOW: Who is -- oh, the State Water
Commission?
MS. PARSONS: Yeah. Explain that.
MS. KRAFTSOW: Because they're looking at
existing use. They are going to look at existing use
as of July 21st, 2003. And everybody has one year to
put in their permits for existing use, every user.
And so they probably will try to honor anybody who's
already existing and using water. It's conceivable
they could even make people cut back. But that's
their first priority, people who are actually existing
users.
So people who have reserved water are not
considered to be existing use as of the date of -- and
you know, even if they decide the issue like in
Molokai, they designated I think it was 1992 and we
didn't have our existing use permit until 1995 and
even then we were already using more water than what
we were permitted for. But that was existing as of
1992. And future use permit, we still don't have it
on Molokai. So --
MR. VICTORINO: So the bottom line in all of
this -- and no offense to you, Ellen, I guess just for
the public to understand is we have what we know
actual usage is as of right now.
MS. KRAFTSOW: Uh-huh.
MR. VICTORINO: We have X amount of
subdivisions or homes or whatever that have been
committed for meters at this point which you guys are
entering so that you can figure out how much more
usage will be added on. That's what these figures are
here.
MS. KRAFTSOW: We know actual usage and we
know water meter reservations. And those numbers are
pretty solid.
MR. VICTORINO: What's that?
MS. PYLE: Is that committed, a reservation,
is that committed? These terms are very, very
nebulous.
CHAIRPERSON HIRANAGA: Dorothy, Mike has the
floor.
MS. KRAFTSOW: It is confusing. And it's a
legal question I'm not going to even touch. We'll do
our best certainly to meet those reservations.
MR. VICTORINO: And Ellen, I'm not trying to
put you on the spot, believe me, I'm just trying to
get it clarified in my mind and in the public's mind
what we're trying to achieve because we have so many
like Dorothy mentioned nebulous out there that we hear
this, we hear that, we're not sure specifically where
we're at. So that's why I was trying to ask, okay,
these figures you were giving us earlier are just
estimates, committed --
MS. KRAFTSOW: Yes.
MR. VICTORINO: So I can use the word
estimate?
MS. KRAFTSOW: Existing use is obviously not
just an estimate. Reservations is an estimate, but
it's a pretty good estimate. Subdivisions is a lot
weaker because the amount -- the speed with which we
had to do that quantity of data, the amount of data
that's in the files, the level of familiarity that the
staff has with the projects because we're not working
on them, there are many factors.
Also, you know, even just the estimates that
are in the computer, you know, 114 lots and by the
time they're done, 118. These things happen. It's
part of the normal subdivision process, there are
minor project changes. And for that reason, it's an
estimate. It's a best estimate that we have at the
moment.
MR. VICTORINO: And the last thing, I promise
we'll move off the subject and let other people -- on
this next well that we are going to hopefully get on
line within the next six months, what is the best
estimate about the amount of gallonage that we would
get out of this well? How much can we pump out of
this well, keeping it at a safe level, et cetera? Do
we have any idea?
MS. KRAFTSOW: Well, again, out of the entire
Waihee Aquifer, what we're estimating is available is
7.2. So if installed pumpage is 6.6, regardless that
we could actually pull more from the well because
that's a matter of redundancy standards and
everything, it will bring us from 6.6 back to 7.2.
And that will be within a few months, I think.
MR. VICTORINO: Okay. Thank you.
CHAIRPERSON HIRANAGA: Dorothy, did you have a
question?
MS. PYLE: I just -- I guess -- I'm still
confused by the terms reservations and commitments.
They just seem very nebulous to me and it makes it
very, very hard to understand what any of these
numbers mean.
MS. KRAFTSOW: Could I just defer to
corporation counsel on that because it is -- it is --
the water commitment form says, you know, we will, as
long as water is available, we will give you water,
all right. But there is some circumstances in which
even a meter reservation can be held back and I would
like to refer to corporation counsel.
MS. PYLE: Stop right there, though.
Reservation commitment. You're saying a meter
reservation and then does that commit water. Because
just a little while ago I thought you said it didn't.
And so there is a confusion about the terminology or
how those terms are used, which leads us to not really
understand which categories the available water are
really in.
MS. KRAFTSOW: If you have a meter, water is
committed to you, period, if you have a meter. If you
have a meter reservation, it's like a promise to do
our best efforts. But again, you're asking me and I
would rather you ask corp counsel.
MS. PYLE: There he is. Let's ask him.
MR. KUSHI: What is your question?
MS. PYLE: The confusion that seems to exist,
at least from what I'm hearing, between the
terminology of a commitment and a reservation.
MR. KUSHI: Mr. Chair, what I believe Ellen is
talking about is she's trying to give you figures or
actual hard numbers. She gave you the hard numbers in
terms of actual meters in use, which is of record.
MS. PYLE: That one is clear.
MR. KUSHI: The reservations she's talking
about I'm assuming are those applicants or land owners
or developers who have actually paid for a
reservation. You just don't get a reservation; you
pay for a reservation.
MS. PYLE: All right. Can I keep asking --
MS. PYLE: Let me finish. And that's pursuant
to your rules. If the applicant is not ready for
service at this time to hook up for whatever reason,
maybe distribution lines, if the department has
adequate source at the time he applies, that applicant
can come in and actually pay for a reservation for a
meter, one or two or whatever, if the department has
adequate source at that time.
Now, the question becomes is that a commitment
on behalf of the department if that applicant does not
hook up one year, two years from now. A reservation
lasts, according to your rules, up to three years. So
we're talking about reservations made in May of this
year, it may last until two or three years from now.
What if we dry up three years from now, what do we do?
Your rules provide that, again, in the event -- I'm
just citing from your rules -- that in the event
occurrence or condition not caused by the board which
prevents the board from performing its obligations,
excuses the board from those obligations except to
refund the money. That seems quite harsh, frankly,
but again, this is what your rules say.
So I think Ellen is [inaudible] giving hard
facts, reservation facts, and pending subdivisions who
have not made reservations. Correct?
CHAIRPERSON HIRANAGA: Yes, Ginny, go ahead.
MS. PARSONS: Sorry, Sally.
What you're telling us then is that
reservations without a source is the issue, and we
don't know how much source we have right now. If we
continue to keep the reservations that we have right
now, we're in conflict with what we did upcountry. We
returned $200,000 of reservation money in March
because Pookela well wasn't on line yet. However, we
do have a source. And, you know, this is a concern
when Ellen can't tell us exactly how much water we are
going to be using because she doesn't have all of her
facts and figures yet together to do, how can we
continue to even give out meters on the reservation?
That's kind of what I think we're looking at, is how
can we continue even -- to do that when we don't have
source -- we don't have knowledge of how much source
we have yet.
And this, again, I'm going to go back to the
fact that these are hand taken numbers that we use on
this. These are like they go out, the meter readers
read the meters, and we get the numbers. The SCADA
system is going to give us a different view or a more
in-depth view, I should say, than what we do on
reading meters on a certain day of the month. So
until we have the SCADAs -- until we can look at the
SCADA system to see what's transpired for like the
last six months, how can we tell what we actually are
pumping?
MR. KUSHI: Ask her.
MS. KRAFTSOW: Okay. A couple of things. One
is upcountry has had a shortage or for many, many,
many years. Defining a shortage. All right. So it's
a separate situation. I won't even go there.
But for here, reserved meters are already
subtracted before we even get to the remaining supply
estimate. So that 1.388, the 565,150 is already
included -- is already deducted, sorry, before we get
even to the subdivisions issue, okay. So we set aside
water, unpumped water was set aside for those
reservations before we even looked at subdivision,
water available for subdivisions without them.
So we are going to make every best effort to
honor the reservations and part of how we did that was
set aside an amount of water for them.
And I think Mike had a question earlier. I'm
sorry, I didn't include the whole report, but last
meeting that -- in that report you would see the
schedule of all those things, yeah.
CHAIRPERSON HIRANAGA: Sally, let me ask you a
question. Is your question regarding what the topic
is right now or --
MS. RAISBECK: It has to do with system
capacity that is on this same --
CHAIRPERSON HIRANAGA: May I ask one question
just before we move on to your subject?
MS. RAISBECK: Yes, it relates to what Ginny
was saying about how much source do we have and I
would like to take that up.
CHAIRPERSON HIRANAGA: Okay. I just to
clarify here. So this system withdrawal, these
numbers are coming from where? Is that what is being
-- it's coming from the pumps or it's coming from like
what Ginny says it's coming from meter reading?
MS. KRAFTSOW: No. Those are from pump
reports. And that's actually June 30 numbers. I can
update you with July 31 numbers.
CHAIRPERSON HIRANAGA: So if there is leakage
within the system, that's irrelevant.
MS. KRAFTSOW: Yes, it would be reflected in
the system numbers.
CHAIRPERSON HIRANAGA: The other question I
had was what is the difference between -- you have
SUBT bonded -- is that substantially bonded or --
MS. KRAFTSOW: Sub total.
CHAIRPERSON HIRANAGA: So this 0.723 is within
the 1.953?
MS. KRAFTSOW: Yes.
CHAIRPERSON HIRANAGA: But subdivisions
pending means they have preliminary subdivision
approval? Is that how you become a subdivision that's
pending?
MS. KRAFTSOW: Their application has been
entered and I would say the majority just of the ones
that were counted like, you know, some we looked at
and this doesn't represent water use because it's just
a large lot or whatever. The majority of the ones
that are in this number would have been beyond the
preliminary approval stage. But the term does not
necessarily mean that they have received preliminary
approval. It means that their application is in and
being considered.
Preliminary approval usually happens pretty
fast, so the majority would have. Probably almost
everything in this number.
CHAIRPERSON HIRANAGA: But they're determining
the likelihood of these pending subdivisions to come
to fruition. The construction plan design stage or --
MS. KRAFTSOW: We deleted anything that was
expired, denied, or just so old that it was --
CHAIRPERSON HIRANAGA: Inaccurate?
MS. KRAFTSOW: Yeah. So that those would not
have been added to the total.
CHAIRPERSON HIRANAGA: So you're saying these
subdivisions pending, there is activity by the owner
which would give you reliance that they plan to bring
it on.
MS. KRAFTSOW: Yeah.
CHAIRPERSON HIRANAGA: Sorry, Sally, go ahead.
MS. RAISBECK: Thank you, Mr. Chair. I feel
like we are bogged down here in details having to do
with regulatory -- the county's method of regulating
and accounting for meter use. I am more concerned
about what I see as a more fundamental question which
is are we looking accurately at what source we have
available. And Kent mentioned the fact that between
source as pumped and source as used in people's meters
on the street, there is leakage. So that you can't go
right up to the amount that is pumped, you can't
expect to distribute that amount.
But I want to go back to -- again, this is on
page 3 of what was mailed out to the board, and the
top left side there says System Capacity. Now, 90
percent of Iao sustainable yield is 18 MGD. And
correct me if I say anything wrong, Ellen, just break
right in and correct me if I say anything wrong. We
are limited by the State Water Commission to use only
18 -- we cannot -- that's on a 12-month moving
average. In the summer months we can use more, in the
winter months we use less, but a year from now we
still will not be able to use more than 18. And a
year from now they may cut us back even from that 18.
Is that correct?
MS. KRAFTSOW: They could cut us back or they
could increase it. They still deem the sustainable
yield to be 20 million and they're doing the head and
shoulders model, the groundwater study --
MS. RAISBECK: It won't be ready.
MS. KRAFTSOW: Whenever it's ready, it's
possible that it would say that there is more than 20
if it were distributed better. I mean, what I'm
saying is the range is right now 20 million is the
sustainable yield. The trigger for designation was
18. We doubt that they would give us a hundred
percent of the 20 millions, but it's going to be their
decision and they could opt to give us more than 18.
But at this point they have not given anything, so
we're trying to stay within the 18.
MS. RAISBECK: Okay. They could cut us back
to less than 18. The USGS model results won't be in
for several years, so we aren't going to know anything
a year from now. But they could cut us back to less.
Worst case scenario is for some reason they decide to
cut us back.
But assume we are able to maintain that 18
MGD, which is their usual practice. Meanwhile,
looking at the next figure on that table, you are
using 90 percent of Waihee sustainable yield and using
that as 7.2 MGD. Now, at the last meeting I urged
very strongly that we consider what John Mink has said
which is I looked at the map of the Waihee Aquifer.
All of our wells in the Waihee Aquifer, including the
Kupaa well, are within the lower -- the southernmost
third of that aquifer. And we are pumping up to --
one month we pumped up to 6 MGD from one third of the
aquifer when John Mink, the hydrogeologist, has told
us it should only be 4, we should only be using 4 out
of that section of the aquifer.
If we, in two or three years -- well, three or
four years, we expect to have more wells in the
northern part of the aquifer, presumably we might be
able to get another 4 MGD from that part of the
aquifer, but again that's years way, that's not now.
So that I think using that 7.2 is not looking at the
real facts of present pumpage.
Now, you say that if we look down at the
bottom of that table and we look at when you're saying
total system capacity is 27 MGD, I think that's bogus.
Then the next table you run a scenario where
we only -- instead of using 7.2 for Waihee, we use 6.6
for Waihee. And I think that's bogus, too, because
you said, if I read you correctly, you said that you
looked at installed present, installed pump capacity,
and it was 6.6. Now, does that include the fact that
normal process, normal usage is you figure out of the
total installed pump capacity you only get 45 percent
usable? Does that 6.6, is that 45 percent of
something? Or is it the total installed pump
capacity.
MS. KRAFTSOW: No, it's installed capacity.
MS. RAISBECK: It is total.
MS. KRAFTSOW: Uh-huh.
MS. RAISBECK: So that one should actually be
using the 45 -- if you want to be conservative, if you
want to be safe, the reason they cut it back to 45
percent most of the time is because you have
situations where pumps are down, you have all kinds of
situations that have led as a matter of common
practice in water systems all over the country, they
only use 45 percent of installed pump capacity to
figure how much water they're really going to have
available.
MS. KRAFTSOW: Except this is the Central Maui
system. We have more than 46 million gallons of
installed capacity. So we're not even -- we're not
even touching --
MS. RAISBECK: But the rest of it is in the
Iao Aquifer that we can only take 18.
MS. KRAFTSOW: They can back each other up so
you have to look system wide. I mean, there is maybe
some small regions right in Waiehu Town where it would
be harder.
MS. RAISBECK: But we have already found that
some of that installed pump capacity in the Iao
Aquifer were built badly, like three wells in a small
area, and if you pump them hard --
MS. KRAFTSOW: Not included in the total that
I just --
MS. RAISBECK: That's not included in the
total?
MS. KRAFTSOW: Mokuhau 2, no.
MS. RAISBECK: If you really pump hard, you're
already getting salt into some of those wells,
brackish water, and if you have really pump hard
you're going to get more brackish water and we will
have less supply.
So I think the conservative way to go is with
the very last scenario you gave, which is on page 4,
where it says the total system capacity is -- you're
only using 4 MGD from the Waihee Aquifer. Rather we
don't like that because that says we only have 23.4
MGD. And we already have in use 25, which means we're
already in a deficit. And if you then put in about 2
MGD from reservations, from meters you are giving out
right now today, you come up to where we are very much
in a deficit situation right now and we're just
heading into the hottest part of the summer.
So I think the whole calculation, from the
physical facts of it, nothing to do with who gets
meters and who doesn't get meters, the fact of the
pumpage right now exceeds what we should be pumping
and it will only get worse if we give away more meters
or give out more meters and give out more
reservations. I mean, we stopped giving reservations,
that is good, but every meter you give out is making
the situation worse for the people who are already on
the system. Because we don't have enough water to
really cover what is needed in the hot summer. And
I'll be happy to listen to your comments on what I
said.
MS. KRAFTSOW: Okay. Well, obviously your
suggestion would be the more conservative -- most
conservative way to go. That's why it's presented.
But we did discuss it with the State Water Commission
staff and the wells are tested, the performance on the
aquifer they assure us right now the Waihee Aquifer as
we have been pumping it is remaining in good shape.
In fact, on moving average chlorides went slightly --
or the moving average, the water level went slightly
up, which is a good sign for the aquifer. So it's
within the testing range of the pumps that were
installed and it is within the -- it is not appearing
to cause any detriment to the aquifer at this time.
So with that and given the huge economic
impact if we were to just cause everything to come to
a screeching halt, we opted to try to put the brakes
on a little bit more gradually. And -- let me finish.
And I think that I understand your concern. I would
say, too, though, that Mr. Mink said -- his comments
were regarding long term and they were also -- the
paper that you showed me, that's different from the
report that I had initially seen but the one that was
passed out that you showed us all I guess August 11th,
he says you should not expect to get more. He doesn't
say you shouldn't take more, it's going to harm the
aquifer. He says you should not expect to get more.
Wait. So, I mean, I think that in the long term we
would want to distribute our pumping appropriately, we
would probably try to take no more than four on each
half of the aquifer, if that still remains the best
advice of hydrologists. But in the short term, as
we're building towards that direction, towards the
northern half of the aquifer, it doesn't seem to be
causing a problem. That's based on the pump tests
that were run on the well and it's based on
performance of the aquifer while they're using it that
way.
And so weighing that against the other
options, I think it was determined that it would be --
you know, you want -- it's the same thing of how can
you most benefit all the involved parties without
harming them, right, give the least harm and most
benefit. And since the aquifer seem to be handling it
and it is only a temporary situation until we get more
sources and we are actively pursuing those, it seemed
to be okay, let's slow things down considerably but
keep using that much was an appropriate decision
because the aquifer is handling it right now.
If that changes, obviously we have to take
another look. But we've spoken to the commission
about it.
MS. RAISBECK: Mr. Chair, may I continue
questioning?
CHAIRPERSON HIRANAGA: Yes.
MS. RAISBECK: Yeah. I would like to read
what -- that I brought to the attention of the board
last time. This is in the Final Supplemental
Environmental Impact Statement for the East Maui Water
Development Plan -- which I keep having to remind
myself that is not for water for East Maui, it's for
water for the central system.
And in that report, which was written by Mink
& Yuen, it says, "The average allowable yield of 4 MGD
is for the region between Waihee Valley and
Makamakaole Valley." That's the region where all our
pumps are. "It should not be exceeded even when the
Kupaa well is added to the system. Currently about 4
MGD is into the Central Maui system from four North
Waihee wells, another well at Kupaa is not yet
connected to the network. Total allowable average
yield when all wells are on line will be approximately
4 MGD."
So that he says, I think, in no uncertain
terms, don't take more than 4 MGD from this southern
third of that aquifer which is where all our wells
including the Kupaa well is.
Now, let me go on to one further point before,
you know, you comment on that, and that is that when
you say the Waihee Aquifer is in good condition, last
November along with setting a trigger for designation
of the Iao Aquifer, the Water Commission set a trigger
for designation of the Waihee Aquifer. And that one
is not in terms of million gallons a day pumped; it's
a different kind of trigger, it's a trigger on the
water level in the Kanoa test well. If that hits 6
million gallons -- 6 feet, I'm sorry, 6 feet above sea
level, if the water in that well declines to 6 feet
above sea level, we will be automatically designated
in Waihee, just like we were automatically designated
for Iao.
I wasn't able to get a timed graph from the
department of the level of that well, which I wanted
in order to see what the trend was. And so I called
up Gordon Tribble from the U.S. Geological Survey to
ask him, and I tried to look on the internet on the
USGS website. And he explained something to me that I
would have loved to share with the board via e-mail if
I could have, but I wasn't. What he told me is that
the reason they're having trouble with the use of that
figure is because they do not have an accurate
measurement of the height of the well. And the way
they measure the height above sea level of the water
in the well is from the top of the well they measure
down to the top of the water. And then if they know
the distance from the top of the well to sea level,
they can subtract and get the height of the water in
that -- above sea level of the water in that well.
He said that there is about half a foot
difference between John Mink's measurement of that and
another surveyor's measurement of that. They have a
program which they hope will give an accurate figure
sometime in November. Right now there is half a foot
uncertainty.
I looked at the graph of the water depth from
top of the well to the water and since April that has
declined about half a foot. So we're down a foot from
-- we could be down a foot from the numbers Ellen was
quoting which was 7 and a half or 7 and a quarter
feet. We could be down -- easily down a foot from
that. We know we're down half a foot. Depending on
the measurement of the top of the well, we could be
down another half a foot. That would leave us 6
inches before we hit automatic designation in Waihee.
So I think we need to be very conservative
because that water level has declined half a foot
since April. If we keep pumping the way we've been
pumping, it can go down another half a foot and, bam,
we're designated.
MS. KRAFTSOW: I would like to respond to
that. Number one, Sally, when you made that request
at the last board meeting, the very next day I phoned
Gordon to ask for his numbers. There are a few things
you should know. The graphs that he posts on the web
and the numbers that go with them, first of all, they
didn't send it. They said we'll send when it we can
get to it. Okay. This is the water department
requesting it, who funds some of the studies and they
didn't send it. Okay? Still have not sent it.
Number two, he said just pull it off the web.
The issue is when Roy Harding did his analysis, it's
the same -- the water, regardless of what benchmark
you use, the water is doing what the water is doing.
But the State Water Commission used a starting
benchmark of 7 point something feet, I don't even
remember. The benchmark that they are graphing
against and publishing is 6 point something. The
water is the same, regardless of which benchmark, they
just disagree about which is the better benchmark.
Okay?
What the water commission does is they get the
USGS numbers and they translate it to their benchmark
because the state commission's decision to designate
or not was based on the analysis done with the
commission's benchmark. But the USGS is still
publishing their benchmark. So what that does is put
us in the position of things looking much worse than
they are, even though the benchmark is the same.
Once a correct benchmark is set, the entire
analysis is going to be redone, as far as I understand
it, they are going to do the entire analysis over so
that it's all consistent to one benchmark. But in
between times, we didn't even get the data. So you
say you couldn't get it from the department. Isn't it
interesting you can get it from USGS -- we asked USGS
for it. So I shouldn't publicly be revealing my
frustration about that, but I am because we talked to
USGS that it would be doing a disservice to the public
to publish inconsistent data when the data we're being
regulated against is the data the State Water
Commission did their whole analysis on. It makes us
look dishonest, which we are not and it is not fair to
us to put us in that position. And they did not honor
that concern. And now here we are.
But the fact remains that the State Water
Commission, the e-mail -- and I can forward it to you
if you want -- the e-mail I got from Kevin, the most
recent MAV was 7.25. That's actually good, compared
to last year at this time of year. That's pretty good
for July. And the Waihee Aquifer seems to be doing
fine.
I agree we need to proceed with caution. We
need to look at it again and again and again. But we
can't just, you know -- I don't like this implication
that we're in any way doing anything less than a
conscientious job, because we're not.
MS. RAISBECK: Mr. Chairman, I stand by my
position that I think the proper scenario to use is
the one that uses 4 MGD from Waihee, not 7.2 or even
6.6. And that if that is true, then we are already in
deficit. In fact, from Ellen's figure for that
scenario, we are over using and over pumping by 3.7
MGD or two and a half MGD right now at this moment.
Thank you.
CHAIRPERSON HIRANAGA: Thank you, Sally.
Ginny, you had a question?
MS. PARSONS: I would like to get a
clarification. Ellen, where did you put the Hawaiian
Hawaiian Home Lands reservation, the 97 which is about
60,000 gallons, where did you put that in?
MS. KRAFTSOW: The 97,000 gallons for Waiehu
Kou?
MS. PARSONS: 97,000 gallons.
MS. KRAFTSOW: In this particular scenario
where I had you next to the 1.953, write it instead,
what was it, 1.9816.
MS. PARSONS: That's what I thought and I have
a problem with that because Hawaiian Home Lands comes
first.
MS. KRAFTSOW: Right, well, if they get the
reservation, then it would move up to --
MS. PARSONS: It's not an if. They need to be
in the reservations. That's not even a negotiable
point. They're first. So the reservations now become
6 -- well, it's more than that.
MS. KRAFTSOW: It becomes 648,150. Because
some were already installed out of those that were in
that 565,000.
MS. PARSONS: That needed to be clarified.
Thank you.
MS. KRAFTSOW: So that would also come back
out of the 1.95. 68,400 would come --
MS. PARSONS: Still puts us with a minus 805
in Waihee, what I calculated, somewhere around in
there.
CHAIRPERSON HIRANAGA: Kenneth?
MR. OKAMURA: Thank you. I can see that one
of the problems maybe Sally is using the USGS data
information and Ellen -- the department is using the
water commission information. So, you know, there is
nothing to be said that one is better than the other.
And it's really a problem to use consistent -- did you
evaluate, Sally, the water commission data and Waiehu
monitor?
MS. RAISBECK: Thanks for the question, Ken.
The USGS is the one that does the measurements. I
don't think -- not the water commission. There is I
think what Ellen brought out is a valid question about
if in September the USGS finds out through this
elaborate procedure involving two very high quality
GPS antennas that over a period of eight hours can
give you a very accurate elevation, if they find out
that that is the elevation of the well, that is it,
there is no controversy. I don't think the Water
Commission is going through any procedures to
determine the elevation of the well.
I think Ellen was perhaps unwittingly
misleading when they talked about different
benchmarks. There are no benchmarks, as we understand
benchmarks being something that has been surveyed
accurately and set into the ground is what I call a
benchmark, and there aren't any in the area of this
well.
If they want to measure, they have to measure
-- they will measure from Kahului Harbor on up where
there is a benchmark and that will -- then they will
use this GPS equipment to determine accurate
elevation. At that moment -- when they develop that
accurate elevation, then we will know from the
measurements they make of the depth of the water in
the well what the height above sea level of the water
in the well is. And I'm sure the Water Commission is
not going to argue with that.
The Water Commission can say oh, well, we were
really thinking of something else and so we're going
to change our trigger, but that's a very lengthy
process for them to change a trigger. So that I don't
know without hearing from Roy Hardy or the State Water
Commission, I would not assume that they would very
quickly or easily change their definition of what the
trigger is. It would be easier for them, if it turns
out with these accurate measurements that the height
of the well is 6 feet or less, it would be easier for
them to designate. Otherwise they have to go through
a long process to change the trigger.
MS. KRAFTSOW: Actually, I would like to
respond to that, they measure against -- they didn't
have a benchmark that they had confidence in, so they
measured against an assumed benchmark. And both the
USGS and the State Water Commission initially used the
benchmark that the State Water Commission is still
using. USGS found what they thought was a possibly
better benchmark to use. And yes, I'm not talking
about a specific survey thing in the ground, I'm
talking about the purpose that that specific survey
thing serves which is another okay use of the term.
We're going out with them I think the first or
second week in September to re-GPS and retry to figure
out the vertical -- the real vertical elevation. But
the entire analysis that was done and the 6 foot
trigger that was set was set using the original
benchmark. So if your numbers -- if your elevation
changes, the whole analysis changes, you just adjust
your benchmark and the spreadsheet changes. And it's
not a long, lengthy process. They can do it and they
will do it. My guess is they will do it. Because
we've talked to them about it. It is not fair -- when
the aquifer is not changing based on how you change
your benchmark, it is not fair to penalize the
department based on, okay, you've done your entire
analysis on one criteria and then you change the
criteria and say oops, you lost. You need to do your
analysis and is the aquifer really changing at the
rate that you say it's changing, then you need to
measure it consistently along your whole rap. And you
know that as long well as I do.
MS. PARSONS: So actually, if I could sum up,
there is the geophysical question about what is the
height of water in the well. There is the regulatory
question about what will the State Water Commission
use as their trigger if the situation as far as
elevation changes. And also pointing out that going
back to the physical situation, the water in the well
has declined by half a foot since April. Thank you.
CHAIRPERSON HIRANAGA: We're going to call for
a 10-minute recess.
(Brief recess.)
CHAIRPERSON HIRANAGA: I would like to call
the meeting back to order.
MS. KRAFTSOW: Do any other board members have
questions regarding this issue?
MR. NOBRIGA: I have a comment, Mr. Chairman.
From where I sit, there is no recommendation required
of this body at this time. The board, prior to the
recent charter amendment, had approved and has
everything necessary in order to take action with the
administration and the department in moving forward
from the designation of Iao and Waihee aquifers.
Should the administration like to review those
comments and recommendations that we had provided
them, I'll be more than happy to sit with them, as
would any member of the department. At this time I
wish to defer this matter. There is no action
required.
MR. HASHIMOTO: Is that a motion?
MR. NOBRIGA: No, just recommendation.
CHAIRPERSON HIRANAGA: Before we move to
motions, I just had a couple of questions.
Ellen, when do you think the so-called 800,000
gallons per day allotment would be used up? Do you
have a time frame in mind?
MS. KRAFTSOW: I don't at this time. Until --
I guess what we can do is enter how many are being
received and plotted over time and see what pace it's
going at. But at this point I don't have it entered.
I don't know.
CHAIRPERSON HIRANAGA: If you're able to, that
might be some useful information for us.
Also, I guess question for the director, has
there been any formal challenge to the mayor's
decision to halt the acceptance of meter reservations?
MR. TENGAN: The only action I'm aware of is
the actions of the council this week. The County
Council is challenging the mayor's authority to stop
reservations.
CHAIRPERSON HIRANAGA: Thank you. If there
are no further questions --
MS. RAISBECK: I have a question. I'm not
sure what you were referring to when you asked Ellen
about the 800,000 gallon a day allotment. What is
that?
CHAIRPERSON HIRANAGA: I believe that's their
so-called remaining capacity that they were going to
issue meters on.
MS. RAISBECK: I don't see that figure on any
of these sheets of paper.
CHAIRPERSON HIRANAGA: Is that a wrong figure
I used?
MS. KRAFTSOW: No, that is the figure from
before these were done from the initial discussions
when it happened and the estimates at that time, it
came out to about 1.6 -- where you see 1.988 or 1.38,
the initial estimates were right in the middle of that
were 1.6. And so they decided to be conservative and
take about half of that and say we'll give out that
many meters and that's it.
CHAIRPERSON HIRANAGA: So that's the number
you're working with --
MS. KRAFTSOW: That predates -- yeah, that
predates this and we're just trying to keep it up to
date of where we are and where we would be against
that.
CHAIRPERSON HIRANAGA: So it's 800,000
gallons --
MS. KRAFTSOW: Was the correct number.
CHAIRPERSON HIRANAGA: Is that a moving number
or is that still the number you're using?
MS. KRAFTSOW: That's how much additional
average, but we're not going to wait a year. I mean,
we would estimate the average. It's about how much
additional -- they stopped giving out reservations and
they said they would give out up to another 800,000
gallons.
MS. RAISBECK: Okay. I find that a very, very
weak number because the thing you say you're averaging
is a situation where using 7.2 MGD from Waihee with a
situation where you're using 6.6 from Waihee, both of
which I think are wrong, and you're saying well let's
strike a balance between those two and we'll say we
have 800,000 gallons of water to give away. It
doesn't make sense to me.
MS. KRAFTSOW: No, Sally, that was from before
the estimated -- it was a prior month, the source use
was lower, it was not quite the heat of the summer
yet. And the estimated subdivisions total was also I
think a little bit lower, but that wouldn't have
affected that number. So it was -- the pumpage
capacity, yeah, it was capacity and in use and
reserves. Capacity, less in use and reserve, at that
time that it was done, it was a few months ago. And
it wasn't splitting the difference, it was using the
7.2 at that time.
CHAIRPERSON HIRANAGA: Yes, Dorothy.
MS. PYLE: Actually, with all due respect to
Mr. Nobriga, some of us were not present when the
board discussed these issues before, and the actual
designation of the Iao Aquifer had not taken place at
that time the board apparently discussed these issues,
so I really feel that perhaps as an advisory board, no
longer a board that has the ability to take any kind
of action, but as an advisory board, that perhaps it
really is in our best interests and in the county's
best interests to offer advice to the department that
caution should be followed and that we would as a
board -- and this is of course for the board to agree
or disagree on -- that we would advise that extra
caution and some kind of tracking be afforded to the
board and to the public about what's going on here.
I don't feel that we get enough information
fast enough perhaps and there must be a better system
for us or a better way for us to have accurate
information in order to offer advice. I'm just -- I'm
just stating that, I think that we can only offer
advice and I think that we would be negligent in our
duty not to do that at this point in time.
CHAIRPERSON HIRANAGA: Yes, Ginny.
MS. PARSONS: On that same line, I think that
maybe it's time that we start seeing if we can't get
the SCADA system reports and let's take a look at the
last six reports and get a graph. I know it's going
into the [inaudible] in November and we'll have
numerical, but maybe we ought to see the graphs for
right now.
MS. KRAFTSOW: Just yesterday I got that data,
maybe one-minute intervals going back several years.
You can imagine one minute intervals going back
several years is in several separate files. I mean, I
would have to go back to them and ask them to graph it
and compile it separately I think more realistically.
But I did discuss with them the differences between
the SCADA and pump reports and.
The flow meters that are out there, the RTU
report, is the same flow meter that's manually read.
And there are periods when the pump is off and due to
a restriction in the device or something like that, it
might continue to read [inaudible] GPM or even 81 GPM
or even 100 GMP even though the pump was turned off
because there is a pressure -- it's the way that there
are three kinds of monitors, there is like a
[inaudible], a paddle wheel, and an ultrasonic device.
So what they do is they double-check the data with run
time. There is a timer on the pumps also and they
double-check the data. But it is the same flow meter
that that data could be automated. But even if it
were automated, it would need a lot of staff
involvement with expertise to understand the devices
and the pump behaviors and the pump -- certain pumps
have their efficiency curves, you know, it's rated at
a constant head at 1250, say, it may go -- it may
vacillate between 1200 or 1300 or something, but it's
not going to go down to 100. If it's on, it's not
going to be down at 100.
So it looks to me like the data is -- from
what I've been hearing so far, it looks to me like the
data should be pretty consistent once system
adjustments are made. The other difference would be
averaging method because if you go out and read once a
week or once a month or whenever you go out and read,
you're reading a total of that month. If you're
taking a sum of one-minute increments and you miss
some period where it's running 180, you're going to --
you could throw your numbers off. But also, you set
the start time that you want and the end time you want
on those increments, right, so you're going to get a
slightly different average than the guy who goes out
in the field and he goes out maybe every Wednesday at
the end of the month or something. It's going to be
slightly different between the 1st and the 31st. So
there is an averaging difference and there is a
checking it against the run time difference. It seems
to be where the differences come from because it's the
same flow meter, whether it's sent through the SCADA
or whether it's manually read. I don't know if that
makes sense, but -- that's where we are.
CHAIRPERSON HIRANAGA: Yes, Sally.
MS. RAISBECK: Thank you, Mr. Chair. At the
risk of adding more complication to the situation, I
would like to read a memo from -- or letter from Danny
Mateo, Chair of the Council Water Resources Committee,
to the water director, dated August 14th, 2003.
And I should explain to all of you that for
many years I have made a practice of checking the
notebook at the Council Services Office. Each Council
Committee keeps a notebook of all correspondence that
comes in and any item whatsoever of information
relating to a given agenda item is kept in a notebook
for public use, for the press and for the public to
use. So this is a letter that Danny Mateo sent to
Mr. Tengan on August 14th. It says, "Subject: Status
of Iao and Waihee Aquifer Systems Designation." WR 8
is the agenda item.
"As you know, Mayor Alan Arakawa has announced
that as of July 21, 2003, the County has indefinitely
stopped accepting applications for water meter
reservations in Central and South Maui. May I please
request your department's assistance in providing the
following information regarding applications for water
meters for the Central and South Maui areas.
"One, the number of applications received by
your department on or before July 21, 2003 for which
water meter reservations have not been given.
"Two, the amount of water that would need to
be committed for use if these applications were
approved.
"Three, the number of applications received by
your department after July 21, 2003.
"May I also request your department's
assistance in providing the following information:
One, a summary of all pumping state data transmitted
to the State Water Commission on Water Resource
Management regarding the designation of the Iao
Aquifer.
"Two, a summary of all pumping data for the
past five years recorded by the county's SCADA system
for the Iao and Waihee Aquifers and for the Central
and South Maui regions.
"Three, an explanation for any pumping data
relied upon by your department that is different from
the information provided for by the SCADA system.
"Four, a summary of all pumping data provided
to Mayor Arakawa that was intended to influence or may
have actually influenced the decision to halt water
meter reservations in Central and South Maui.
"Five, time lines for water source development
for Central and South Maui.
"Six, a summary of litigation regarding water
sources. Please provide the current status of each
case. If any information to be transmitted regarding
this inquiry is confidential, please transmit it by
separate cover clearly marked "confidential."
"Seven, a summary of any information regarding
noncounty pumpage for the past five years. Please
include an estimate of unrecorded usage.
"Eight, existing allocations under the
applicable water use and development plan.
"Thank you for your time and attention to this
matter. A response no later than August 27, 2003
would be greatly appreciated. And please feel free to
contact me or my committee staff. Sincerely, Danny
Mateo, Chair, Water Resources Committee."
And I read this because I think it's almost
humanly impossible to gather that amount of
information in the time available, but when it is
gathered I would certainly hope that the Board of
Water Supply would also receive a copy of all this
information. Thank you, Mr. Chair.
CHAIRPERSON HIRANAGA: If there is no further
discussion, I'll open the floor to a motion.
MS. RAISBECK: I would like to make a motion,
Mr. Chair. I believe that the director would like us
to support his and the mayor's decision to stop the
issuing of water meter reservations. And I don't feel
qualified to decide who has the power to issue that
order, but I feel strongly that it is an order that
should have been issued and therefore I would like to
move that the board express their sense that this is a
measure that is needed, whoever is the authority who
should make that decision. It is a measure that is
need to protect the water supply.
CHAIRPERSON HIRANAGA: So simply stated, your
motion is to recommend support of the mayor's decision
to halt acceptance of meter reservations.
MS. RAISBECK: Yes.
CHAIRPERSON HIRANAGA: Is there a second?
MR. VICTORINO: For discussion purposes, I
second that motion.
CHAIRPERSON HIRANAGA: Discussion.
MS. RAISBECK: As I say, it's a thorny
question of who has the power to issue such a ruling.
But I think the board can -- perhaps it should be
rephrased, but I think it's a decision that is prudent
and responsible and I don't think at this point it
serves the public to not do it because the Council and
the Mayor have different views about whose is the
authority to issue that. So I would move that -- I am
open to friendly amendments that would rephrase it.
CHAIRPERSON HIRANAGA: Yes, Mike.
MR. NOBRIGA: Thank you. I speak against the
motion. It brings up the question of what is the
purpose of the Department of Water Supply. The
purpose of the Board of Water Supply is -- the
Department of Water Supply, as I understand it, is to
supply water to the consumer, which is the general
public. By supporting the motion, we are telling the
department that it's not their duty to supply water to
the general public. That's it.
CHAIRPERSON HIRANAGA: Dorothy?
MS. PYLE: I actually think that by not
supporting the more cautious view of how water is
used, the Board of Water Supply and the department
would not be acting in the best interests. We do need
to recognize that there is a limited amount of water
in and on and around Maui. And while it certainly is
the obligation and the duty and the responsibility of
the department to supply water, it is also the duty
and responsibility of the governments and the
administration, the leadership and the county to
determine how the resources of the county will be used
to do that. And since there is not an unlimited
supply of money, there is not an unlimited tax base,
there is not an unlimited ability to establish new
sources of water overnight and instantly, we need to
offer our advice to move in a cautious direction so
that the water that we do have available can continue
to be used by the greatest number of people.
So I would voice my support for a motion that
does support the action that's been taken.
CHAIRPERSON HIRANAGA: Yes, Ginny.
MS. PARSONS: Where do we draw the line in the
sand, though? And that's the biggest case -- that's
the biggest issue that we have right now. We have a
number of reservations that are coming on line and we
have a lot of unknowns and where do we draw the line?
Do we just not give out any more -- I mean, we have
reservations which are paid for and we're giving
meters out to those. Are we drawing the line after
that point or are we drawing the line before it or
where are we drawing the line? And that's not clear
enough right now for us to support the motion. I
mean, when those things are answered, you know, and we
know what the next movement for source is, I think the
motion should be -- I think another motion should be
thought of after the point is we encourage the
department to bring on more source and figure out how
to get more source in here quickly. And then whatever
the mayor and the director decide they have to do in
the meantime is their decision. But we -- our
encouragement should be we need more water source on
line and we need it on immediately.
CHAIRPERSON HIRANAGA: Yes, Ken.
MR. OKAMURA: Mr. Chair, I think, you know, in
our discussion today show that there are a lot of gray
areas. We're not sure what the actual situation,
whether we're going to -- it's a dangerous bad
situation or not. But I think it would pay to be
cautious and I think the motion is to support the
mayor's position that we stop taking reservations for
water meters. Although this will create a lot of
problems or may create problems, I think this is the
least we can do at this point.
I can also agree that another motion should be
made to expedite the development of surface water
source as soon as possible, seeing as how we've been
drawing from the same aquifers and we don't want to do
that, seems like a much more -- so I say voting for
this measure is the only thing we can do at this point
to try to correct the situation which should have been
handled a few years ago. Thank you.
CHAIRPERSON HIRANAGA: Mike.
MR. VICTORINO: Just to add to the sentiment
of Mr. Okamura and Ms. Pyle, I think caution has to be
used at this point. However, the determination who
has the power to do it, whether it's the council or
the mayor, is a political football and I don't want us
getting caught in between.
I would like to -- if Ms. Raisbeck is willing
to do this, I would like to change the motion, instead
of saying supporting the mayor's, I would like to
support that this board would be in favor of the
mandatory restriction on new reservations. As a
board, that's what we would be recommending, to
whoever the powers to be. But not to get caught in
the political football because I don't want later on
people to say well, you were on the mayor's side or
the Council. I don't want to be caught in between
that. But I agree with the basis of the motion, so I
would like to change it if it can be done on a
friendly basis to say we agree with the mandatory
restriction on new meter reservations as a board. I
would like to change the motion to that, if that's
okay with you, Ms. Raisbeck.
MS. RAISBECK: Yes, Mr. Chair, that is
perfectly acceptable to me. I think that is a very
worthwhile change.
CHAIRPERSON HIRANAGA: So you're willing to
amend your second?
MR. VICTORINO: That's correct, I would amend
my second.
CHAIRPERSON HIRANAGA: Yes, Clark.
MR. HASHIMOTO: Mr. Chair, I think I would
like to support what Mr. Victorino just mentioned
about and I certainly would not like the same thing
what's happened to Upcountry where many people's
dreams have gone, so to speak, down the drain because
there is not enough water. And it's the same thing
that's going to happen to Central and South Maui.
I think what we need to do is I know Wailuku
Ag has sources of water that we can tap into, if we do
have the ability to purchase a lot of these lands.
And I think I echo what everybody else has said that
we need to look for new sources not only for Central
but also Upcountry because I think Upcountry has
really suffered, you know, needlessly or whatever,
many, many years.
CHAIRPERSON HIRANAGA: Yes, the motion has
been amended to remove any reference to the mayor.
MS. PARSONS: Then can we also add to that
motion that the expedition of the new source
development?
MR. VICTORINO: I think that would be a new
motion -- that should be another motion, entirely
separate.
MS. PARSONS: Why can't we include them?
Let's just put it all in one? Why?
MR. VICTORINO: I would like a separate
motion. I think we're moving in one direction.
MS. PARSONS: Let me move to amend the motion
that the board advises that we advise the mandatory
cut back and that we also recommend the development of
new source to be expedited for central valley.
CHAIRPERSON HIRANAGA: Is there a second to
the proposed amendment to the motion? There is no
second.
MR. VICTORINO: Mr. Chair, if there is no more
discussion, I would like to call for the question.
CHAIRPERSON HIRANAGA: All in favor --
MS. RAISBECK: So could we restate the motion
so that everybody is clear about what they're voting?
CHAIRPERSON HIRANAGA: The motion I believe is
the board recommends -- the board supports the action
to halt water meter reservations at this time.
MS. RAISBECK: Thank you.
CHAIRPERSON HIRANAGA: All in favor, please so
indicate by raising your hand. Let the record show
Kenneth, Sally, Clark, Mike Victorino, and Dorothy
Pyle in favor.
Those opposed? Let the record show Mike
Nobriga and Ginny Parsons in opposition. So the
motion passes.
MS. KRAFTSOW: Mr. Chair, may I ask one
question?
CHAIRPERSON HIRANAGA: Yes.
MS. KRAFTSOW: The motion that just passed,
did I understand correctly that not withstanding that,
that support to stop giving out reservations, that the
board would still support the issuance of a
reservation to the Hawaiian Home Lands project?
MS. PYLE: I don't think we have a choice.
CHAIRPERSON HIRANAGA: The motion was to
support the mayor's decision -- to support the
decision --
MS. KRAFTSOW: To stop giving out
reservations, right. And it would be a new
reservation, that's why I'm asking for clarification
on that point.
CHAIRPERSON HIRANAGA: Yes.
MR. KUSHI: Mr. Chair, you just voted on the
-- you approved the amendment to the motion. Now you
need to --
MS. RAISBECK: No, we did not.
MR. KUSHI: You approved the amendment to the
main motion. Now you need to approve the main motion.
MS. RAISBECK: Mr. Chair, would I be out of
order to ask Ginny to make a separate motion now to
accomplish what she had in mind?
MR. VICTORINO: Now we need to make approval
on the main motion.
MS. RAISBECK: Oh, we haven't got to that? I
beg your pardon. I beg your pardon.
MR. VICTORINO: Thank you, Mr. Kushi.
CHAIRPERSON HIRANAGA: So all in favor of the
main motion, please so indicate by raising your right
hand. Let the record show the same individuals,
Kenneth, Sally, Clark, Mike Victorino, and Dorothy
Pyle in favor.
Those opposed? Let the record show Mike
Nobriga and Ginny Parsons in opposition.
Do you wish to make --
MS. RAISBECK: Now could we --
CHAIRPERSON HIRANAGA: Do you wish to make a
motion, Ginny?
MS. PARSONS: I would like to make a motion
that the Board of Water Supply recommend to the
administration and the Department of Water Supply that
they expedite new resources for Central Valley to be
on line as soon as possible.
MR. VICTORINO: Before someone seconds the
motion, I would like to not only say Central Maui but
include Upcountry, you know, so that should be
included in the motion, too, please.
MS. PARSONS: Central Maui and Upcountry. New
water sources.
MR. VICTORINO: I second that.
CHAIRPERSON HIRANAGA: So moved and seconded
by Mike Victorino. Discussion?
MS. RAISBECK: May I offer a friendly
amendment? Can we include the Council -- the
administration --
MS. PARSONS: That is part of the
administration.
MS. RAISBECK: Not the Council.
MS. PARSONS: Yes, it is. Council and
administration. It actually includes George as part
of the administration.
MS. RAISBECK: Yeah, George, but not the
Council.
MS. PARSONS: But it does include --
administration does include Council. Is that not
correct?
MR. KUSHI: Not on Maui.
MS. PARSONS: Not on Maui? Not at this time,
is that what you're saying? Not this administration
then. As far as I understood, the administration
was --
MR. KUSHI: I think Mr. Kane would have a
problem with that.
MS. PARSONS: Just to make it clear, County
Council and the administration and the mayor.
Specifically the mayor.
CHAIRPERSON HIRANAGA: Discussion, Ginny? Do
you want to discuss the motion?
MS. PARSONS: I think it's self explanatory.
MR. OKAMURA: I had a question. You know, as
far as Central Maui is concern, the Iao Aquifer and
the Waihee Aquifer is close to the limit. Would it be
proper to specify in this motion that we try to seek
maybe surface sources of water or other sources of
water besides the Iao Aquifer or Waihee Aquifer?
MS. PARSONS: New sources.
MR. VICTORINO: New sources. It's all
encompassing.
MS. PARSONS: Everything that they can find.
MR. OKAMURA: Another well in the North Waihee
Aquifer would not be the solution.
MS. PARSONS: They better know what they're
doing on that.
CHAIRPERSON HIRANAGA: The motion is just to
identify or obtain new sources. Yes, Sally.
MS. PARSONS: Yes, Mr. Chair, I would be
strongly in support of this motion. I think we
definitely need new water sources.
CHAIRPERSON HIRANAGA: Any further discussion?
MR. VICTORINO: I call for the question.
CHAIRPERSON HIRANAGA: All in favor of the
motion to recommend or to support or to urge the
administration and council and the mayor to seek new
sources of water for Central Maui and Upcountry Maui?
All in favor of the motion, please so indicate by
raising your right hand. Let the record show it's
unanimous, so the motion passes.
Next agenda item is East Maui Plan - Status
Report on Litigation Concerning East Maui Plan.
MS. LOVELL: Good morning, Mr. Chairman and
members. My name is Jane Lovell. I'm one of the
deputy corporation counsel serving the County of Maui
by providing legal advice. And I'm specifically
assigned to litigation and therefore I'm here today
because I have been assigned to the litigation over
the East Maui Plan. However, as long as we're in open
session, I just wanted to let you know that I am
constrained to only provide you with information
that's already in the public record.
CHAIRPERSON HIRANAGA: Yes, Mr. Nobriga.
MR. NOBRIGA: So there would be nothing that
you could share with this body that would be of
exclusive nature?
MS. LOVELL: I'm happy to tell this body what
litigation has been filed and what has happened to
date in that litigation that is public. However, I do
not believe it would be wise for me to discuss
strategy or anything of that nature in a public
session.
I believe very much in the right of the people
to know what its government is doing and in the right
of the press to freely report all such information.
However, it's simply not practical for sensitive
negotiations to be revealed in a public way for
everyone to read on the front page of the newspaper.
That's what I'm saying.
So I'm happy to answer your questions or to
give a very basic status report on this litigation,
but in open session it would not be wise and I would
not be advising you about strategy and that sort of
thing. If you feel that as an advisory board you
should have that information, then I would recommend
that you hear it in executive session.
CHAIRPERSON HIRANAGA: Yes, Ginny.
MS. PARSONS: Jane, have you read the
correspondence from Mr. Nishiki?
MS. LOVELL: Yes, I have.
MS. PARSONS: And how do you comment on that?
MS. LOVELL: I think -- I don't have it right
here in front of me, but my understanding is that
Council Member Nishiki feels that because this body,
the Board of Water Supply, does not have the power to
take direct action, that therefore an executive
session is not appropriate.
I say with respect to Mr. Nishiki, I disagree
slightly and that is that this board does have the
power and the duty to advise. And I don't see how can
you properly advise without information.
And to the extent that the board and its
members have been named in litigation, you have the
right to attorney/client privilege to receive legal
advice from your lawyers in private.
MR. NOBRIGA: Mr. Chairman, I have heard
sufficient information from Ms. Lovell that would
cause me to make the motion to go into executive
session.
MR. VICTORINO: Second.
MR. NOBRIGA: Let me make the motion.
Mr. Chairman, at this time I move that the
board convene into executive session pursuant to
Hawaii Revised Statutes 92-5(a)4 in order to consult
with the board's attorneys on questions and issues
pertaining to the board's duties, privileges,
immunities and liabilities.
MR. VICTORINO: Now I second.
CHAIRPERSON HIRANAGA: Any discussion?
MS. RAISBECK: Yes, Mr. Chair. I support the
motion. I believe we should go into executive session
and I think Mr. Nishiki is incorrect in believing that
because we are an advisory board and cannot take
action, that we have no basis to convene. I think as
an advisory board we do need to have sufficient depth
of knowledge of these important issues that we can
give adequate advice. Thank you.
CHAIRPERSON HIRANAGA: Any other discussion?
If not, I'll call for the vote, motion to go into
executive session. Please so indicate by raising your
hand. The motion is unanimously approved. I'm going
to call for a 5-minute recess to allow the general
public to leave.
(Brief recess.)
[Executive Session I held.]
CHAIRPERSON HIRANAGA: I would like to call
the meeting back to order.
MR. VICTORINO: Mr. Chair, I would like to
make a motion if I may. I would like to move that we
approve the direction which the corporation counsel
has related to us about the ongoing negotiation for
settlement on the East Maui Plan litigation.
MS. RAISBECK: Second.
CHAIRPERSON HIRANAGA: Discussion?
MR. VICTORINO: Call for the question.
CHAIRPERSON HIRANAGA: Personally I have some
reservations regarding certain details of the proposed
negotiations, but at this time I will defer to the
better judgment of the department and corporation
counsel and the mayor.
If there is no further discussion, I'll call
for the vote. All in favor, say aye.
[Chorus of ayes.]
CHAIRPERSON HIRANAGA: All opposed? Motion
carries.
I would like to go into recess, be back in
session at 12:30. So if you want to go get your
lunch.
(Brief recess.)
CHAIRPERSON HIRANAGA: I would like to call
the meeting back to order. Next agenda item is
Central Maui Joint Venture legal issues regarding
joint venture agreement.
MR. NOBRIGA: Jane Lovell, are you counsel for
this matter?
MS. LOVELL: No, not necessarily, but I am
prepared to address it today.
CHAIRPERSON HIRANAGA: Will you have a seat,
please?
MS. LOVELL: It's my understanding that the
board has asked for an update on the status of certain
negotiations that were ongoing on the Central Maui
Source Development Agreement, the Joint Venture
Agreement from 1975. Some legal questions arose last
time about whether that agreement is still in force
and what happened to the negotiations over it and so
forth. And I am prepared to address those issues
today, although as with the last discussion we had, I
think that if we are -- if I am to give legal advice
to you regarding my interpretation of the agreements
and their force and effect, that that legal advice
would best be given in executive session.
MR. NOBRIGA: Mr. Chairman, for this matter I
move that the board convene in executive session
pursuant to HRS 92-5(a)4 in order to consult with our
attorneys on questions and issues pertaining to the
board's duties, privileges, immunities and
liabilities.
MR. VICTORINO: Second.
CHAIRPERSON HIRANAGA: Is there any
discussion? If no discussion, all in favor say aye.
[Chorus of ayes.]
CHAIRPERSON HIRANAGA: Motion carries. We'll
take a five-minute recess -- one-minute recess to
clear the room.
[Executive Session II held.]
CHAIRPERSON HIRANAGA: I want to thank
corporation counsel for the update on Central Maui
Joint Venture. I don't believe there is any motion
required regarding that.
Next item on the agenda is Discussion of
Sunshine Law by Office of Corporation Counsel.
MR. KUSHI: Yes, Mr. Chair, members of the
board. I've just passed -- staff just passed out to
you a letter addressed to you and the members, dated
today, it was done this morning. Again, we apologize
for not earlier submitting it, but time does take its
toll. However, we had discussed this before and first
do you want me to read the letter, Mr. Chair, or have
you had an opportunity to read the contents?
CHAIRPERSON HIRANAGA: I don't believe it's
necessary.
MR. KUSHI: For the public, there are extra
copies. In essence, the letter describes a situation
where we've been alerted that there may be violations
of the Sunshine Law by one or more members of this
board. In essence, we're saying that the issue of
e-mails between and amongst more than two board
members, and in some instances not only two or more
board members but to other non-board third parties as
well as media. The contents of these various e-mails
range from, you know, requests for items to be placed
on future board agendas to send us version of minutes
of a prior board meeting.
Again, our letter to you basically in essence
sites two sections of the HRS Sunshine Law, Sections
92-4 and 5 of the Hawaii Revised Statutes, and also it
references Section 92-2.5(a) of the HRS. Maybe I
should read that into the record. 92-2.5(a) HRS
states, "Two members of a board may communicate or
interact privately between themselves to gather
information from each other about official board
matters to enable them to perform their duties
faithfully as long as no commitment to vote is being
sought."
Now, moving on the specific provision that we
believe has been violated or may be violated is
Section 92-5(b) HRS which specifically states, "No
chance meeting, permitted interaction, or electronic
communication shall be used to circumvent the spirit
or requirements of this board to make a decision or to
deliberate toward a decision upon a matter over which
the board has supervision, control, jurisdiction, or
advisory power."
Based on the situation and the circumstances
that has come to our attention, we would take the
position that any and all e-mail communications or
broadcasts from one board member to two or more fellow
board members, regardless of the content contained in
the communication, violates the spirit if not the
letter of the Sunshine Law.
However, to confirm our view, and the basis
for this letter to you is that we would strongly
advise that our office on behalf of your board be
directed to request a formal opinion from the Office
of Informational Practices of the State of Hawaii,
which office administers the Sunshine Law.
We have listed three proposed questions to be
asked of the OIP and I have listed them and we will be
open to any further suggestions or inquiries that you
or any other board member would want to include. The
specific questions would be that in reference to
Section 92-2.5(a) HRS: "Must the communication
between two board members be "private" or can said
communication always be transmitted or broadcast to
non-board third parties and/or the media?" It's a
fairly narrow question, but I guess it's meant to
interpret that section.
The second question would be in reference to
92-2.5(a) HRS, "Are communications or interactions
between three or more board members, regardless of the
content and/or intended purpose of the said
communication or interaction, a per se violation of
the Sunshine Law?" That is a more -- a broader
question.
And lastly, "Does the prohibition contained in
Section 92-5(b) HRS specifically with respect to the
prohibition of electronic commissions or e-mails,
apply only to executive sessions?" Mainly that's a
technical question because that section is found in
the executive session section of the statute.
Again, you know, this has been hanging in my
office for a while. We would like to conclude it. We
would like to have OIP tell us what to do or not to do
and what is permitted and with your help we can advise
this board as well as all of our other boards and
commissions.
CHAIRPERSON HIRANAGA: Thank you. Are there
any questions for corporation counsel?
MS. RAISBECK: Yes, Mr. Chair.
CHAIRPERSON HIRANAGA: Yes, Sally.
MS. RAISBECK: Thank you. Yes, I have a memo
that I would like to distribute to the board if you
will hold on just a minute. Yes, I am the board
member who's being complained of and Ginny Parsons --
who unfortunately is absent now -- is the person doing
the complaining.
So I had heard indirectly, not from her, that
she was sending e-mails around to everybody and his
brother complaining that I was breaking the Sunshine
Law. I'm sorry that she's not here now, I'm sorry
that four members of the board are not present,
because I think this could be an interesting
discussion. Perhaps we could -- I have told the
corporation counsel's office that I would welcome
referral to the OIP because I, too, want to have these
questions answered about what is permissible in
situation this board find itself in.
I would also add a question whether there is
anything in state law or our rules which says that
only the chair can put an item on the agenda. I would
like to have it made explicit that the board by
majority vote at each meeting can decide what items
should be on the agenda. I have felt very restricted
by not being able to have items be on the agenda that
I felt and history has shown it would be very
important for us to discuss but we have not discussed
because they have not been on the agenda.
The memo that I passed out lists all of the
e-mails I have sent to the board and the e-mail