BOARD OF WATER SUPPLY
COUNTY OF MAUI
REGULAR BOARD MEETING
THURSDAY, JANUARY 27, 2005
Held at the Kahului Shopping Center Conference Room,
65 West Kaahumanu Avenue, Unit 29, Kahului, Maui, Hawaii,
commencing at 9:05 a.m. on January 27, 2005.
REPORTED BY: Rachelle Primeaux CSR No. 370
A P P E A R A N C E S
VICE-CHAIR: KENNETH OKAMURA
BOARD MEMBERS: DOROTHY R. PYLE
RALPH JOHANSEN
KENT M. HIRANAGA
MICHELE McLEAN
SALLY RAISBECK
STACY HELM CRIVELLO
CORP COUNSEL: ED KUSHI, ESQ.
DEPUTY DIRECTOR: JEFFREY PEARSON
BOARD SECRETARY: CATHY HOWARD
STAFF: ALVA NAKAMURA
BOARD OF WATER SUPPLY
TRANSCRIPT OF PROCEEDINGS
* * *
VICE-CHAIR OKAMURA: Will the meeting please come
to order. Welcome, everybody. Thank you for being here.
Today's meeting of the Board of Water Supply on January
27th, 2005, is being held at the Kahului Shopping Center.
Present are Stacy Helm Crivello, Michele McClean, Kent
Hiranaga, Dorothy Pyle and Sally Raisbeck, Ralph Johansen
and myself Kenneth Okamura.
Sometimes Mike starts with announcements, so are
there any announcements today?
BOARD MEMBER RAISBECK: Yes.
VICE-CHAIR OKAMURA: Sally.
BOARD MEMBER RAISBECK: Thank you, Mr. Chair. I
would like to announce that the new Water Resources
Committee will be holding its first meeting on February 2nd.
They are going to take up the question of Pookela well and
also the water rates study. Michelle Anderson is the Chair,
and it's a seven-member committee. I would also like to
announce that the attendance of the Molokai public hearing
on water rates was ten. The attendance at Wailuku was
three. And point of order, Mr. Chair, I would like to at
some point when it's appropriate ask the Corp Counsel
whether or not it's not required by the State in the
Sunshine Law that the minutes include the votes yay or nay
on every motion. I believe that is true, and I would like
to check it out with the Corp Counsel.
VICE-CHAIR OKAMURA: Okay. Where would we put
that on the agenda, towards the end? Should we just answer
it now?
MR. KUSHI: Why don't you put it at items for
future agendas, and we can discuss that.
VICE-CHAIR OKAMURA: Okay. Is that all right?
BOARD MEMBER RAISBECK: Yeah, that's fine.
VICE-CHAIR OKAMURA: Okay, thank you. Okay. Next
item, are there any testimonies from the public?
BOARD MEMBER RAISBECK: Excuse me, are we going to
approve minutes?
VICE-CHAIR OKAMURA: Okay, I'm sorry, fair enough.
Thank you. Is there a motion to approve the minutes?
BOARD MEMBER RAISBECK: I'll move to approve the
minutes, although in discussion, I have a couple of changes.
BOARD MEMBER McLEAN: Second.
VICE-CHAIR OKAMURA: Thank you. It has been moved
and seconded that we approve the minutes of the December
21st, 2004, Board of Water Supply meeting. Is there any
discussion?
BOARD MEMBER RAISBECK: I noticed a couple of
misprints, but actually, I only got to write down one. Page
5, Line 19, it says that "threads" where it ought to say
"threats". And someplace else, which I can't refer to
exactly at the minute, it refers to Councilman Mattos, and
that should be Councilman Mateo, M A T E O. I don't have
those references written down here.
VICE-CHAIR OKAMURA: Okay. So noted. Are there
any other additions or corrections? Okay. If not, all
those in favor of approving the minutes, please signify by
saying "aye".
(A chorus of ayes.)
VICE-CHAIR OKAMURA: Opposed, same sign.
(None.)
VICE-CHAIR OKAMURA: Motion carried. Thank you.
Okay. So the next item would be testimony from the public.
Is there anyone who wishes to address the board? Okay,
thank you. Great.
Next item, other business, Page 2, Number 4. Item
A, the verbal updates and discussion of public hearing by
the State Commission on Water Resource Management on the Iao
Aquifer Water Use Permit Applications attended by Jan Lovell
on November 16, 2004. According to the Corporation Counsel,
Jan Lovell will be here or will try to make it here, so she
asked that it be put towards the end or as the last item on
this section. Is that okay? Are there any objections?
BOARD MEMBER RAISBECK: No objections.
VICE-CHAIR OKAMURA: Okay. Item E, verbal update
on the Pookela well. Alva Nakamura.
MR. NAKAMURA: Mr. Chair, as far as Pookela well
is concerned, as you know, the bid amount for that project
came in at $2,369,162. We gave the notice to proceed to
Maui Master Builders on January 5th of this year. And from
what I understand, the application is in. It's been set up
by individual agencies and the permit is pending final
review and the contractor has been instructed to follow up
with DSA.
The contractor will be submitting a construction
schedule for this project by tomorrow. And once we get
that, we will schedule a preconstruction meeting and move,
you know, proceed on this project. As you know this project
is scheduled to be completed sometime about the first
quarter of '06 mainly because it's going to take about a
year once we've placed the order in for the pumps for it to
arrive here on Maui. So just looking at how things are
going, we hope that we will be able to get an order in for
the pump probably next month and get that procedure going.
The contractor can't order the pumps right now
because they still have to do an alignment check of the well
and do a few checks, which he has not been able to do yet
until we have approved for these plans to do it. So this is
in the works right now. I've been in contact with Maui
Electric Company to take a look at the power line that's
going to be feeding the well.
And as you know, since we changed the size of the
pump requirement from 1,000 horsepower down to 600, Maui
Electric has determined that they will now no longer need to
upgrade the power line that will service the Pookela well.
Instead, all they need to do is install some transformers
and things to provide that. In talking to them this
morning, they think that they probably will be able to do
something for us and have service available by October of
this year, and that, again, is going to be subject to a
number of things.
One thing is that we have this pipeline that we're
going to start work on, bring the pipeline down to Makawao
Avenue down to Olinda Road. And that pipeline is going to
be going right through the driveway that leads to Pookela
well. And, of course, once the trenches open, you know, if
they want to get in there, they might have some difficulties
accessing the property, so we're trying to kind of
coordinate this so it will minimize the chance of disruption
and delays by not only our general contractor, but also by
Maui Electric, so these are some issues that we're dealing
with right now.
VICE-CHAIR OKAMURA: Thank you. Are there any
questions for Mr. Nakamura?
BOARD MEMBER RAISBECK: Yeah, Alva, you said that
the contractor hasn't been able to -- I forget your exact
phrase -- but a check on something he needed to check on.
MR. NAKAMURA: No, he needs a do a well alignment
check, look at the alignment of the well before they can go
ahead and order the pump. And he has not been able to do
that yet pending our approval, but he's planning to do it.
This is still in the process of getting approval from us.
BOARD MEMBER RAISBECK: I'm just curious as to why
he hasn't been able to do it yet. Is it he's too busy?
MR. NAKAMURA: I think he's just tied up. But
we've been on his back, and I've instructed my staff to call
him every week to find out what the status is so he's on top
of this thing. So we talked to him again yesterday, so I
believe he's now back on track again, and the important
thing is we get this construction schedule from him so we
know where the major events are going to occur on this
project. And if we see him falling behind, we'll get back
on him and bring him back on line again to be sure we get
this project completed on time.
BOARD MEMBER RAISBECK: And the other question is
the pump that you're intending to order is 600 horsepower,
not 1,000 horsepower?
MR. NAKAMURA: Yes.
BOARD MEMBER RAISBECK: Did that change the
capacity of this pump?
MR. NAKAMURA: Yes, it's going to go down to 1.4
million gallons per day from the 2 million gallons per day
that the 1,000 horsepower pump would be able to provide.
BOARD MEMBER RAISBECK: So we've gone back to the
smaller pump?
MR. NAKAMURA: That's correct, and for good
reason. The larger size pump, you know, we didn't have any
experience with regard to the pump. It runs at a higher
RPM, so, in essence, what that does is it probably creates
more of maintenance problem because it's running higher
RPM's. The one that we selected is one that we've had
experience with, and it's a much, much more reliable pump
than the 1,000. So after much discussion and going back and
forth, we decided to go with a smaller pump. This also
saved Maui Electric from having to upgrade their power lines
as well.
If we went to a bigger sized pump, there's a good
chance that this whole project could have been delayed by
two to three years. Because they would have to have brought
in their transmission wire to service that pump, so it has
multiple effects in terms of the size of the pump.
BOARD MEMBER RAISBECK: Okay. So if we go down to
the smaller pump, then the effective product of the well,
the production of the well will be approximately half?
MR. NAKAMURA: About 980, whatever that amount is.
BOARD MEMBER RAISBECK: I thought the rule of
thumb was 45 percent of the well pump capacity.
MR. NAKAMURA: Two-thirds, two-thirds.
BOARD MEMBER RAISBECK: That's 45 percent.
MR. NAKAMURA: That's right, 45 percent.
BOARD MEMBER RAISBECK: So that would be less than
700,000 gallons from Pookela well, is that correct, of
actually effectively usable water?
MR. NAKAMURA: I thought I calculated about 980.
I will go back and check it again.
BOARD MEMBER RAISBECK: Okay. Well, maybe give me
a call if you have a different figure or something. Thank
you. Thank you, Mr. Chair.
VICE-CHAIR OKAMURA: Okay. Thank you, Sally. Any
further questions?
BOARD MEMBER PYLE: Yeah, I just have another
question I guess about the pump issue. Are there other
pumps in the County in the Water Department that are of a
similar size?
MR. NAKAMURA: I think this is about one of the
largest that we have.
BOARD MEMBER PYLE: My question I guess is that
what kinds of provisions may or may not be being made for
not maintaining, but being sure this pump stays on line? If
there are no similar pumps and then there's no way to
actually raid parts from other ones if this one fails or
something, will there be any provisions made for a backup?
Because if this pump goes on line, and then for some reason,
it doesn't work for a while, what happens to all that water
capacity? And I'm just wondering what kind of provisions
there are for problems in the future.
MR. NAKAMURA: Well, my understanding is, you
know, when this well first got started working on it, the
intent was to use this more as a backup to the surface water
production. You know, that was the intent.
BOARD MEMBER PYLE: I know.
MR. NAKAMURA: So how operations decides to
operate it, you know, I don't think that really has been
determined yet. Because, you know, if you use this pump to
produce, it's going to be very costly to pump, you see. So
I think what they'll probably do is, and again, I can't
speak for operations, but they will probably have to look to
see what would be the most economical way to operate the
system and use the well accordingly.
BOARD MEMBER PYLE: And I'm not sure you're not
in a place to answer any of these questions, but doesn't it
seem like we've been reading in all kinds of things about
meters being given out based on the amount of water that's
going to be coming out of this well? So that doesn't seem
like it's a backup. It seems like it's actually
consumption, so this could create a future issue. I'm just
bringing this up as something to think about. Okay.
MR. NAKAMURA: I'll let Jeff answer.
MR. PEARSON: Mr. Vice Chair, I think that it's
always -- I shouldn't say always -- but from a long time
ago, the Pookela well was left as, I don't know if the word
is backup, but to increase reliability. So the Pookela well
will not run continuously as Alva suggested. It will run
when we're near drought situations or our reservoirs are
becoming lower, so it's going to be, I don't know if backup
is the right word, but it's going to be to enhance the
reliability.
BOARD MEMBER PYLE: But then why does it seem like
the public is being told that when Pookela well comes on
line, there will be more permits available and more water
available when that isn't apparently the truth?
MR. PEARSON: There will be more water available
because we have the capacity to provide more water and we
have a greater reliability with Pookela well, so with a
greater reliability and a greater sense of comfort, I guess
you could say, then we can provide more meters because we'll
have that greater reliability. As I said, if the reservoirs
start to go down, we may not panic as early because we have
Pookela well as a backup, if you want to call it that.
BOARD MEMBER PYLE: Okay.
VICE-CHAIR OKAMURA: Any further questions? Kent.
BOARD MEMBER HIRANAGA: So it appears it's taken
two years to get to this point since the test well was
drilled. So is the Department sure now that it's not going
to change its mind on the type of pump they're going to
specify because they were looking at 1,000 horsepower pump
for what, two years, and now you're going to 600? Are you
sort of final now in the decision?
MR. NAKAMURA: Mr. Chair, I can assure you that it
has been set, and there will be no more changes.
VICE-CHAIR OKAMURA: I had a question. Anybody
else? Okay. The cost you said was 2 million, and how is
this compared to what was budgeted for the project?
MR. NAKAMURA: I think it was overbudgeted, so we
had to do some adjustments to the budget.
VICE-CHAIR OKAMURA: It was originally $900,000.
MR. NAKAMURA: I don't have the number in front of
me.
MR. PEARSON: It's under budget.
VICE-CHAIR OKAMURA: It is under budget?
MR. NAKAMURA: I couldn't --
VICE-CHAIR OKAMURA: Thank you. Are there any
other questions? If not, thank you, Mr. Nakamura and Jeff.
BOARD MEMBER RAISBECK: Oh, one question.
VICE-CHAIR OKAMURA: Sally.
BOARD MEMBER RAISBECK: Since the -- since the
Council on Water Resources Committee is going to be taking
up Pookela well on the 2nd of February, would you be
willing -- anything that you send in written form to the
Council, could the Board of Water Supply receive that in the
mail?
MR. NAKAMURA: Sure. In fact, Michelle Anderson
had called me to ask if I could talk about Pookela well at
the next meeting. So I'm not sure if she indicated to me
just a verbal report or I need to submit something in
writing, but if I do submit something in writing, I will see
that the Board gets a copy.
BOARD MEMBER RAISBECK: Thank you. Thank you.
MR. NAKAMURA: Okay.
VICE-CHAIR OKAMURA: Okay. We'll move on to C,
verbal report from -- oh, excuse me.
MR. KUSHI: Excuse me, Mr. Chair. Jane Lovell is
here if you can just put her back on.
VICE-CHAIR OKAMURA: Okay. Are there any
objections to that?
BOARD MEMBER PYLE: No, that's fine.
VICE-CHAIR OKAMURA: Okay. Thank you.
MS. LOVELL: Thank you. Good morning. I'm sorry
I couldn't be here right at 9:00. I had a court appearance
this morning. According to the agenda -- first, for the
record, my name is Jane Lovell. I'm the Deputy Corporation
Counsel, and I provide advice and assistance to the
Department of Water Supply in connection with the water use
permit applications for water drawn from the Iao Aquifer.
According to the agenda, you wanted a verbal
update and discussion on the public hearing by the State
Commission on Water Resource Management on the Iao Aquifer
water use permit applications held on November 16th, 2004.
Now, there was a public hearing here on Maui on that subject
on October 28th, 2004. Then that hearing was reported on at
a meeting of the Commission on Water Resource Management
held in Honolulu on November 16th, and I attended both
events, so I don't know where it's your pleasure for me to
start. Would you like me to report on both?
BOARD MEMBER PYLE: Sure.
MS. LOVELL: Or just the followup?
VICE-CHAIR OKAMURA: I guess we want to hear the
whole story, so thank you, if you don't mind.
MS. LOVELL: Okay. No, no problem. At the
hearing on October 28th, 2004, that was held here on Maui,
there were a number of people in attendance from the Water
Department to those from the community and Ms. Raisbeck was
there as well. I don't know if any other members of the
Board were there. George Tengan attended. My colleague, Ed
Kushi, attended. Jeff Pearson was there and so forth.
The hearing held on Maui was conducted by a
subcommittee of the Commission on Water Resource Management.
They sent two commissioners, Commissioner Dr. Miike, and
also Commissioner Frasier, who is from the Big Island. And
they heard public testimony and then reported back to their
colleagues of the full commission. The hearing was really
only the start of the proceedings. The hearing did not
close.
It was specifically not closed at the end of the
testimony that was given here on Maui, so that the time
within which to -- for anyone to request a contested case
would not begin to run. And I interpret that as meaning
that the Commission on Water Resource Management hopes to
avoid a contested case if at all possible. Two
commissioners, particularly Dr. Miike, who sat as the
hearing officer for the ten-year Waiohuli ditch contested
case, which is, in fact, not over today, suggested that it
would be a good idea to avoid ten years of intense and
expensive litigation over the Iao Aquifer if that could be
avoided.
So I think with that in mind, what they did was
they came with a preliminary subcommittee to take public
testimony, find out more information to carry it back to
their colleagues on the commission. The meeting was very
well attended despite the fact that it was held on a weekday
during working hours. Not only did a number of applicants
for water use permits give testimony, including George
Tengan on behalf of the Department of Water Supply, but also
a number of members of the public gave testimony. There was
quite a contingent representing the Native Hawaiian
community as well as certain groups within that community.
Some of the public testimony dealt with issues
that the testifier had personally, perhaps their own taro
farm, that sort of thing, but there were other statements
made and presentations made by members of the Hawaiian
community regarding concern over stream flow. I'm not
really sure from the technical standpoint whether those
concerns are best addressed in connection with the Iao
Aquifer which has to do with ground water.
I think the theory that the speakers were going on
is that if you pump from the aquifer, that will invariably
have some impact on stream flow. And I'm not sure if the
science and information is really there to establish such a
proposition, particularly when many, if not all, of the
streams in question are the subject of large scale
diversions for agriculture. And in my view, at least I
would look first at the agricultural diversions, at their
impact on stream flow if we're worried about whether or not
a well several miles away was having an impact on the
stream.
But in any event, those issues came up. They were
thoroughly presented. Everybody got a chance to have their
say. People who were not able to make their whole
presentation within the time limits allotted were allowed
further time at the end of the hearing, so I think that what
came out of it was the commissioners got more information on
some of the specific applications that had been made. They
went back to Honolulu with a little bit better understanding
of some of the issues.
Then they reported back to the full commission on
November 16th, and I attended that meeting of the commission
at Director Tengan's request. Interestingly enough, the
person who reported on the hearing was Deputy Director
Yvonne Isu, who had, in fact, not attended, and therefore,
as you can imagine, her remarks were rather brief. But then
Commissioner Miike and Commissioner Frasier did add, and
they indicated that they thought the hearing had been very
well attended. Commissioner Miike thought that future
hearings shouldn't take place on evenings or weekends or a
time that would allow more working people to participate.
Commissioner Frasier disagreed somewhat. He
thought that the meeting was extremely well attended and
that the time and place and manner I guess of the meeting
were just fine. Both commissioners reported that they felt
that they had a better understanding of some of the specific
issues particularly as relates to one of the applicants,
which is Living Waters Foundation that had made a
presentation. They also noted the trust purpose, the public
trust purpose of using waters of the State for, among other
things, Native Hawaiian tradition and customary practices
such as gathering and also taro farming.
Commissioner Miike asked a question, which he
really admits he has no answer to, and that is on who has
the burden of proving that a particular application does not
harm in any way Native Hawaiian rights. This is a difficult
point because in the recent Molokai Ranch decision by the
Hawai`i Supreme Court, they say that it's up to the
applicant to prove the negative, namely that any particular
well or ground water use will not harm Native Hawaiian
rights. And it's stated so broadly in the opinion that it
suggests what I would think of as almost an impossible
burden on any applicant for a water use permit; namely, to
have to figure out in a vacuum what the rights might be and
then how to address them.
Dr. Miike's thought out loud was that people
asserting such rights would have some duty to come forward
to alert the applicant to the existence of such a right, and
then the applicant could respond to it and demonstrate how
their proposed use would not harm that right. I think
that's a legal issue that's still very much up in the air.
And that was about all that happened at that commission
hearing on the 16th of November. There was in particular no
discussion about the two competing applications for the
Wailuku shaft, which remains an issue before the Commission.
They just didn't bring that up at all at the November 16th
hearing.
VICE-CHAIR OKAMURA: Thank you. Are there any
questions for Jan Lovell? Dorothy.
BOARD MEMBER PYLE: I'm hoping that you can just
shed a little light on this. Then, of course, most of the
information that I have in my head comes from what was
recorded or reported in the Maui News, which may or may not
be accurate, so I'm saying that to start with so you
understand where I'm coming from. It did seem that the Maui
News statement said and that the County's application had
been incomplete at the time of this. And I'm just wondering
if that is in any way correct, if that in any way has an
impact on this mandate of the County before the Water
Commission and what impact that may have in that dual
application for the Wailuku shaft.
And then I have one other question, and that is
that it was almost seemingly reported that the requests for
water from Iao Aquifer exceeded the limit that the Water
Commission had indeed stated as the limit for the aquifer,
and how do you deal with those things? Thanks.
MS. LOVELL: Well, to try to answer the first
question first, the Commission has actually deemed virtually
all of the application incomplete in one way or another.
And, you know, they may be right about that. Certainly the
Department of Water Supply's applications provided all of
the information that was requested on the form that was
provided by the Commission for applicants to fill out, but
unfortunately, the form does not reflect some of the
pronouncements of the Hawai`i Supreme Court in the various
Waiohuli ditch decision and the most recent Molokai
additions. And so in a way, just about everybody was caught
offguard.
One of the reasons they held the hearing in Maui,
and I expect they'll have further hearings, is to get more
information. Most, if not all, of the applications have
also been objected to by a number of groups. The Office of
Hawaiian Affairs has filed formal objections. Earth Justice
has filed formal objections, not only to ours, but basically
everybody's. So at this stage in the proceedings, all
applicants are in the process, if they haven't done so
already, of providing further information or responses to
objections.
Department of Water Supply put in their responses
quite sometime ago. And to my knowledge, we have not been
asked for any further or additional information. And with
respect to the competing Iao -- the competing Wailuku shaft
applications, the Commission staff takes the position that
Department of Water Supply's application was incomplete
because it lacked the land owner's signature at the time it
was submitted.
They then go further and say that because it was
incomplete, in that respect, it was late. And because it
was late, therefore, it must be treated as a new use
application as opposed to an existing use. The Department
of Water Supply filed, after trying to get clarification
from the Commission staff over a number of months,
eventually filed a petition for a declaratory ruling that
the staff's interpretation of their own regulations and of
the Water Code was incorrect and that our application was
not late. It was filed on time. It did lack the signature;
however, that signature was provided later. But that was
beyond the control of the Department of Water Supply.
And then in any event, the Water Code itself does
not require the land owner's signature. It requires only
the land owner's name. And we made a couple of other legal
arguments also and pointed out that if it had been late, if
we had filed late, that the consequence of that is a
presumption that we had abandoned the use. And I pointed
out to the Commission that, of course, we haven't abandoned
the use. We've never abandoned the use. We are the
existing user. We are the only existing user, have been for
some 13 years, and that if the Commission wants to make a
finding that we've abandoned the use and that Kehalani Mauka
is the existing user and we are a new user, that that stands
both the law and the facts completely on their head, and it
would be utterly nonsensical.
I made that argument before the Commission at
their hearing on December 16th or thereabouts, 15th,
whatever the meeting was in December. The Commission gave
us a very full hearing, a full I would say respectful
hearing. And then they decided that they needed more
information and legal interpretation from their own staff
and from the Deputy Attorney General, Lynn Chou, who was
advising them, so they recessed that hearing and indicated
that they would reopen it at a later time when they had
gotten this further information.
I had frankly expected that they would have
renoticed it then for the January meeting and was somewhat
surprised to see it was not on the agenda for the January
meeting. I don't know if it will be on the agenda for the
February meeting, but I'm fully prepared to address that
further. And I think it's fair to say that if we get a
ruling that we continue to see as completely nonsensical, if
that were to occur, I think we would appeal. And I think we
would have very strong legal arguments. If that comes to
pass, I think that would tie this whole thing up for years
unfortunately. I don't think we would get a very quick
ruling out of the Hawai`i Supreme Court. And in the
meantime, it's -- we continue to be able to use the Wailuku
Shaft.
And there was the second part to your question,
which I have in the meantime forgotten.
BOARD MEMBER PYLE: That it did seem, at least
according to the report in the paper, that there were more
requests for water from the Wailuku aquifer than in reality
the Water Commission was willing to allow.
MS. LOVELL: Well, you know, they haven't yet told
us what they are willing to allow, which is going to be kind
of an interesting question. Is it going to be 80 percent of
their estimated sustainable yield? Is it going to be 100
percent? Is it going to be less than 80 percent? They
haven't told us that. But I think if you add up all of the
applications and those applications are available on the
web site of the Commission on Water Resource Management, you
can at least see who has applied and what the numbers are.
They probably do add up to more than 80 percent of the
sustainable yield.
There were a couple of applications by other
parties that were truly late, and also there were a number
of applications by the Department of Parks of the County
that were late, but they don't really go to the ground water
issue. Those are all cap rock wells, which will be
considered a completely different way. There's a real
question in everyone's mind as whether they even had to
apply in the first place, but I don't think those are really
a concern.
But if everybody does still seek all the water
they put in applications for and if the Commission decides
to allow 80 percent of the estimated sustainable yield or
less, then, yes, there will have to be some allocation.
VICE-CHAIR OKAMURA: Thank you. Ralph.
BOARD MEMBER JOHANSEN: In regard to Native
Hawaiian rights and the placing the burden on the applicant
to establish that those rights have not been impacted, I
read the two ditch decisions. I haven't read the other
decision, and I'm not familiar with this in any depth, but I
just had a question. If what the applicant seeks to do is
come in and alter historic rights, is it not the burden of
the applicant to establish that he is not -- they are not
deleteriously affecting historic rights and rather than have
the Hawaiian community engage counsel at their expense and
seek to defend this historic right? That's my question.
Thank you.
MS. LOVELL: Yes, and I think in part, it depends
on what those rights are and how well defined they are.
Obviously, under our Constitution as well as the Water Code
and any number of other laws, there are protections, very
strong protections for gathering rights, access rights,
rights to -- kuleana rights, for example, and all of those
are very well established.
I think the problem becomes when we are dealing
with actually quite a large aquifer where we're dealing with
ground water sources, which are located at some distance
from anyplace where we know of Native Hawaiian rights having
either been exercised in the past where people who wish to
exercise certain rights at present or in the future, and the
question becomes whether it's a burden on the applicant to,
for instance, search, research and determine land titles
over a very large expansive land to see if there are any
outstanding kuleana rights, which aren't a matter of clear
public record. It's that kind of thing.
I don't think that anyone is suggesting that where
there is a well established use or where there is a request
for a particular use and a particular source that the
applicant wouldn't have the burden of addressing that issue.
It's where it becomes murky and you can't tell what rights
are or are likely and are possibly going to be asserted that
you get into this gray area where it's difficult, if that
answers your question.
BOARD MEMBER JOHANSEN: It does.
VICE-CHAIR OKAMURA: Any further questions?
BOARD MEMBER RAISBECK: Yeah, thank you.
VICE-CHAIR OKAMURA: Sally.
BOARD MEMBER RAISBECK: Thank you, Mr. Chair.
Welcome, Jane. Good to see you. And I was glad you
mentioned land ownership, because one of if things that I
heard at that hearing in, I guess it was October, was
several -- several testifiers who were taking the position
that up in that area, Waihee, Waiehu, West Maui in general,
the land titles are all defective because of the overthrow
of the Queen basically and cannot be traced back through the
five years of Republic back to the land ownership before the
overthrow.
So I realize that nobody wants to touch this
unless it, you know, becomes a court case. But I just do
feel in that area, not necessarily other areas, but in that
area particularly, questions are being raised by a number of
people that I'm wondering if you had any statement about at
this time.
MS. LOVELL: Well, again, it kind of depends on
the piece of property that we're talking about. And I think
that most of those questions are being raised concerning
property that's actually outside of the Iao Aquifer, but in
any event, I know that Mahealani Oliver was one of the
people who most vociferously raised those objections. She
has been involved in any number of lawsuits sometimes
involving the County, sometimes not, in an attempt to have
title declared either to herself or relatives or other
people. And she has certainly alleged in those lawsuits,
and there's any number of them, I think five or six, that
the present people who believe they have title to the land
are not entitled to it. However, at least at the Circuit
Court level, she has lost every one of those lawsuits.
With respect to a couple of lawsuits against the
County, the County has been awarded its costs and attorneys
fees against her, although we have not taken steps to
collect at least as of this time. She has appealed to the
Hawai`i Supreme Court, and I suppose eventually those issues
will be straightened out. But at least as legal matters
stand now, every legal challenge that she has brought has
not been in her favor at the Circuit Court level.
BOARD MEMBER RAISBECK: Thank you. I did have one
more question.
VICE-CHAIR OKAMURA: Are there any other questions
on this side? Okay. Sally.
BOARD MEMBER RAISBECK: Yeah, you know, I find
your report extremely interesting and -- but not timely. In
other words, I would like to have, if possible, that when
you deal with the Commission on Water Resource Management,
whatever it may be, if it involves water at all, which it
would if you're dealing with the Commission on Water
Resource Management, that the Board could get a timely
report like within a week as to what went on and what the
issues are and whatever happened at the meeting and what the
ongoing problems are really.
And I wondered if somehow we could work it out
that rather than, you know, hearing about October and
November now and January 27th, if there could be a system
worked out where you could write a little report after your
contact with them and that could be distributed to the
entire board like by E-mail. Is there any reason that could
not happen?
MS. LOVELL: Certainly every time I've ever been
invited to report to this body, I have cheerfully done so
and would continue to do so. I also wrote a memo to
Director Tengan on November 17th regarding the November 16th
meeting. So, you know, I do try to stay on top of things.
Maybe it's a question of having the Department work out with
the Board getting you some more information in a form that's
usable to you. I certainly have lots and lots of paper on
this subject. It's kind of a question of how much you want,
but I have no objection to providing whatever assistance you
reasonably request.
BOARD MEMBER RAISBECK: So could I possibly ask
Jeff Pearson if that -- if we could work out a system
whereby if Jane or any other County attorney dealing with
the Commission on Water Resource Management, we receive
maybe a week later some kind of report on that through
E-mail so that it's timely? Why would that not be possible?
MR. PEARSON: I'll defer to Ed as far as
communicating with the Board through E-mail.
BOARD MEMBER RAISBECK: Could I ask Jane?
MR. PEARSON: Or Jane.
MS. LOVELL: Well, I would defer to Ed on matters
of the Sunshine Law, but it's my understanding that E-mail
is not the appropriate way for the Board to communicate as a
board.
VICE-CHAIR OKAMURA: What if we were to ask the
director or the deputy when they do get reports on this
particular issue, that they would, you know, let us have the
information or the reports, copies of the reports? Because
I hear that you're actually making reports to the Department
as time goes on, right?
MS. LOVELL: Right. I guess the only caveat I
would put is that to the extent that I'm advising the
Department of Water Supply on legal issues where there's an
attorney/client privilege attached; namely, if we're talking
about strategies, for example, then before that would be
shared with the Board, I think we would have to ask for an
Executive Session.
So it might constrain the way I write those
reports. But if a request is made, I will certainly do my
best to comply with the request. We have a means in our
department of requiring departments or boards who request
certain legal services that they be in writing and delivered
to us. That goes into our statistics, which is part of our
budget process and so forth. So it's a formality, but
certainly, I'll do anything that's legitimately requested.
VICE-CHAIR OKAMURA: Okay.
BOARD MEMBER RAISBECK: Okay. I would like to
explain the reason I'm asking this is that I think I and
possibly other members of the Board suffer greatly from a
lack of information from the Department, that we sometimes
read about things in the newspaper that we have not been
informed about and sometimes they're very critical and
crucial things. So I am looking for ways that we can
receive information about important aspects that we have no
other way of knowing about unless it is put in the Maui
News, and not everything important is put in the Maui News.
So I would perhaps request the Chair to request
the director that a means be worked out. Now, E-mail cannot
be used, nor can telephone communications be used to discuss
a matter among the Board. We do receive through the mail
and through E-mail announcements from the Department that
don't seem to contravene the Sunshine Law. I do not see why
an informative report from you a page long about what
happened, why sending that to all the members, not just to
the director, but to all the members of the Board, I do not
see why that should contravene the Sunshine Law.
VICE-CHAIR OKAMURA: What if we were to maybe
bring this up at the next meeting, make it an agenda item,
discuss that issue of information, requesting information?
BOARD MEMBER RAISBECK: Thank you. That would be
fine.
VICE-CHAIR OKAMURA: Thank you. Any other
questions? If not, we'll move on to our last item, next to
the last time, the verbal report from Jeff Pearson.
BOARD MEMBER RAISBECK: Thank you, Jane.
VICE-CHAIR OKAMURA: Yeah, I'm sorry, Jan Lovell,
thank you very much for coming.
MS. LOVELL: You're welcome.
MR. PEARSON: Mr. Chair, this verbal report,
actually, there's it's a written report that was provided in
an earlier agenda, but I think due to time, this was
deferred until this meeting. I think Cathy handed it out at
the beginning of the Board meeting, so I'm not going to read
through this whole thing. You can read it. There was a
conference that was held in San Antonio, Texas, and you're
all aware of the AWWA conference, the annual one, that's
kind of a bigger deal and more supplies and more displays
and vendors and the whole bit, but this one was much smaller
attendance, I guess about 1,400 participants.
It dealt with more technical issues, a lot more
detail to specific chemicals and additives and so forth.
Some of it was a little over my head. I don't know if I was
the best person to attend. I learned a lot about the
disinfection byproduct rules and their changes that are
coming up. I shared those with our lab. One of the lab
persons also attended. I think it was good for her. We
never attended the same sessions because she had a little
bit different direction than I did.
At times it seemed like it was a little over my
head because there was a lot of professors that like to toot
their own horn and show off their findings and some of the
items weren't even pertaining to Maui. I think it's
probably good, and I think next year we should most likely
send someone from our treatment plant and someone from the
lab. Like I said, I was able to bring back information, so
what I didn't ingest, I could still share. I wrote at the
end here, there's a disc that was provided for all the
topics of the conference, so you've got to kind of wander
through there, but there's a lot of information in there.
So if there's anything technical, most likely it would be on
that disc. So that's about all I have to say on the matter
unless there's any questions.
VICE-CHAIR OKAMURA: Okay. Are there any
questions? Okay. Thank you very much. Okay. We'll move
on. I think that's it for the other business section. The
division reports. Thank you. The last item is the receipt
of board member's request for agenda items to be placed on
future agendas.
So far, we discussed two items. One was the issue
discussed for more timely information and more information
from the Department. Would anyone like to add anything more
to that specific one? That's one. And the other one that
came up earlier was the -- Sally, that was your request.
MS. HOWARD: Mr. Chair.
VICE-CHAIR OKAMURA: Yes.
MS. HOWARD: With recording yays and nays on the
votes that was required by Sunshine Law.
VICE-CHAIR OKAMURA: Okay, right.
MS. HOWARD: Corp Counsel opinion request.
VICE-CHAIR OKAMURA: Okay, so we put that on the
agenda as an agenda item for the next meeting.
Mr. Kushi.
MR. KUSHI: Yeah, Mr. Chair. Clarification. Can
you explain the question? I mean recording the minutes, as
I understand, the minutes to reflect a motion and the
recording of votes for what committee, for what agency?
What is this about, for this body?
BOARD MEMBER RAISBECK: This is for this body.
VICE-CHAIR OKAMURA: Could you clarify?
BOARD MEMBER RAISBECK: Yes, I would be glad to
clarify. I was not present at the December 21st meeting. I
read the minutes from the December 21st meeting. The votes
on -- I mean these were some fairly important issues such as
whether to accept the budget, whether to accept or
approve -- whether to approve the budget, whether to approve
the Stakeholder's Committee. These were important issues,
and the vote went against the motion to approve. But the
names of the people voting yay and nay were not recorded.
It was merely one, two, three, four, five, you know, or one,
two, three, four and two against. It didn't say who was for
and who was against.
I believe it is true, but I'm subject to
correction if I'm wrong, I believe it is true that in the
State Sunshine Law where it gives how voting must occur, it
says specifically that the minutes must record those in
favor and those against. And if I'm wrong, so be it, but I
believe that's correct. And that's State law, and it's also
repeated in our rules I believe, so I just would like to
bring up the issue that I think it's a valid thing because I
read the minutes, but I really couldn't tell from them who
voted yes, who voted no on two very important issues.
VICE-CHAIR OKAMURA: What I can do is I'll just
put it on a list for the Chairman for future agenda items,
and if he requests that, if he sees that fit to put it on
the agenda, maybe he'll get in contact with you.
MR. KUSHI: Yeah, Mr. Chair, let me just say this.
I'll double-check again, but my understanding of
parliamentary procedure as it applies to boards and
commissions, Government of Sunshine is that -- and I'll look
and I'll report back to you at the next meeting -- when a
board or commission takes a vote, the Chair controls the
motion. The chair controls the vote. If it's unanimous,
the record is so stated unanimous. You don't need a roll
call. If it's disputed, I think the Chair then on a show of
hands can say, four -- five for the motion, four against.
It is the privilege of any member to ask for a
roll call. At that point in time, you go down the roll, but
I'll check that again. But that's my understanding of
voting procedures and parliamentary procedure, but I'll
report back to you.
VICE-CHAIR OKAMURA: Okay. Thank you. Are there
any other items for the next meeting? Kent.
BOARD MEMBER HIRANAGA: I would like to request a
verbal update on the H'Poko well. Also, I'm not sure if
this is the time to bring it up, but I believe in the past,
we used to receive copies of the director's reports to the
mayor and activity report. I'm not sure if we're still
getting those. They used to do like a weekly report. We
used to get copies of that. I thought that was informative.
Okay. Thank you.
BOARD MEMBER PYLE: I have a list. And some of
these are for future agendas, not necessarily all for the
same time, but I just would like them all to be considered.
The first one is that several meetings ago, I asked for
information about the number of wells that we have on Maui,
and I know that we got partial information concerning the
Iao Aquifer, and I think it's really important that the
issue of private wells be constantly on our radar screen
because there are more and more and more of them all the
time, and they obviously have to have an impact. And so I
think this is something that the Board and the Department
should be aware of.
The second thing is kind of along the same line.
At the last meeting, I know I brought up the question of the
trucking of water to private residences and to private water
systems and asked a very, you know, open question, where is
that water coming from? Are people using county resources
for their own benefit I guess in a way? Are people,
truckers charging money for water they're taking out of the
County systems? And where are they taking it out of and how
much? And I think that that's all something this is denying
people permit -- meters because water is being used in this
way to take it someplace else. I think we should be
thinking about that. That's the second thing.
The third thing that I would like at some point,
not necessarily at the next meeting, but very soon to invite
Michelle Anderson, who is now the Council Committee Chair
for Water Resources, to come and meet with the Board to
discuss what she considers to be important issues and for us
to share with her what we think are important issues so that
in the future we can have more coordinated and more open
relationship with the Council. And the fourth thing is the
ever ongoing issue of fire protection systems. And I
really -- I don't know why we never get any information
about this, but it is an ongoing issue. What are the fire
protection requirements in this County? Who makes them, and
why are they not coordinated? Thank you.
VICE-CHAIR OKAMURA: Thank you. Any others?
BOARD MEMBER RAISBECK: Yes, Mr. Chair. I would
like to add to Dorothy's that I would like the Board
possibly to consider that the Rules Committee could examine
this issue of fire protection. We had -- in the December
21st meeting from reading the minutes, I see that is very
much a hot issue that the Fire Department approved a system
and the Department did not approve the same system, and that
then becomes the problem with subdivisions and so on. So
either the -- I would like possibly the Rules Committee if
we consider this today at the -- well, the February meeting
is going to be pretty heavy with budget and stakeholder's
committee. When the full board considers this subject, I
would like them also to consider assigning the Rules
Committee to look at this question and whether or not the
two can be reconciled or else the responsibility for
approving fire arrangements be left with the Fire Department
rather than -- the Department is overworked as it is. And
it would be possibly a relief to have the Fire Department
take all of the burden rather than the Water Department.
And if I can say incidentally, the Rules
Committee, I will not request any meetings of the Rules
Committee for February -- for January or February because of
the press of other business, especially with the budget and
the stakeholder's report. Thank you.
VICE-CHAIR OKAMURA: Okay. Thank you. Any other
items? Okay. If not, we'll move on to division reports.
Are there any questions or concerns regarding the division
reports?
BOARD MEMBER HIRANAGA: Mr. Chair.
VICE-CHAIR OKAMURA: Kent.
BOARD MEMBER HIRANAGA: Just looking at the
report, number of services by meter size, I notice 42
meters, five-eighths inch meters were issued in the Makawao
area. And I just wanted information regarding that.
BOARD MEMBER McLEAN: Page 17.
VICE-CHAIR OKAMURA: What page?
BOARD MEMBER HIRANAGA: Page 17.
MR. PEARSON: Mr. Chair.
VICE-CHAIR OKAMURA: Excuse me, go ahead.
MR. PEARSON: I can give you a general answer. I
can't give you a detailed answer. I know that we're still
working down the list. If you remember, originally 300,000
gallons was made available to work off the Upcountry system,
and then subsequent to the light at the end of the tunnel
with Pookela well and working with the Mayor, another
200,000 gallons was allowed to be worked on. I know they're
working on that 200,000 gallons now. I don't know the
details of where they are. Maybe Alva can give you maybe
better insight.
BOARD MEMBER HIRANAGA: Is that like a brighter or
a dimmer, the light at the end of the tunnel?
MR. PEARSON: Mr. Chair, I would like to say it's
getting brighter based on Alva's brief discussion today.
VICE-CHAIR OKAMURA: Mr. Nakamura.
MR. NAKAMURA: Mr. Vice-Chair, just one minor
comment. As you know, as we are working down the priority
lists, we've got to send letters out, wait for responses for
the applicant to respond. And all of these kinds of things
takes time. So it appears that, you know, our progress in
getting water meters issued is slow, but it's because of
this time lag that we have to allow them adequate time to
respond. And sometimes some of them don't respond and we
have to follow up again. And, you know, it's all these
kinds of things going back and forth that delays and does
not allow us to speed up this issuance of meters. And so
those are some of the issues that we are dealing with.
BOARD MEMBER HIRANAGA: Thank you. Just one
additional question. Has the Department been able to
calculate the number of meters that will be provided with
the new decision to go to a 600 horsepower pump? Did they
do a calculation of the number of meters, just the meters to
be provided?
MR. NAKAMURA: I don't think we've done a detail
to give you very specific to say exactly how many meters we
will be able to issue. However, we're looking at, in terms
of the 800-plus that we have on the list, we are looking at
possibly reaching into the 400 level in terms of the meter
issuance.
BOARD MEMBER HIRANAGA: For the new capacity?
MR. NAKAMURA: For new capacity.
VICE-CHAIR OKAMURA: Okay. Thank you. Are there
any other questions?
BOARD MEMBER HIRANAGA: One more. You say the
list is now 800?
MR. NAKAMURA: The last that I -- the last time I
saw it, the list was about 800, and we're slowly working our
way down.
VICE-CHAIR OKAMURA: Okay. Sally.
BOARD MEMBER RAISBECK: Thank you, Mr. Chair. So
you mentioned 300,000 gallons and then another 200,000
gallons. That would be 500,000 gallons. Is all of that
water that is considered to be available because Pookela --
because of Pookela well?
MR. NAKAMURA: I believe so.
BOARD MEMBER RAISBECK: So even though Jeff said
it's really just a backup and for reliability, it's actually
being used to give out meters?
BOARD MEMBER PYLE: Meters, that's what I said.
MR. NAKAMURA: That's correct.
BOARD MEMBER RAISBECK: Would you put on the
agenda -- Mr. Chair, that I think the Board needs to discuss
this more intensively because giving out meters if the water
isn't going to be there is not a good idea. So the question
of adequacy of supply based on Pookela well would be
something I think the Board should discuss.
MR. PEARSON: Mr. Chair.
VICE-CHAIR OKAMURA: Yes, Mr. Pearson.
MR. PEARSON: Nine months out of the year
Upcountry, there's adequate water due to the surface flows.
The reservoirs are full. We have rain. We have --
everything is fine. So in those nine -- in those nine
months, if we didn't have any drought conditions, we could
have a lot more usage Upcountry based on our pump capacity
and so forth with what we have in the Upcountry system.
It's those three months, three or two, where
there's low capacity in the surface water that it's hard to
satisfy that assumed large quantity of water, so that's
where the Pookela well will come into, if you look at a
graph of usage, you have a high peak in the graph. And then
when you get low flows, you have a dip. Well, the Pookela
well will bring the dip up. And based on where the dip is
now, we look at the reliability issue as so many meters to
flatten out that graph to allow meters Upcountry. So with
the Pookela well, it provides higher flows, more flows, more
available water in the drought conditions, therefore, we can
allow to have more meters provided because we have Pookela
as an increased reliability in those low flow times.
BOARD MEMBER RAISBECK: Does your projection also
include not have to be in drought restrictions to anybody
Upcountry once Pookela comes on line and the new meters are
issued?
MR. PEARSON: There's no way I would ever say
there's not going to be drought restrictions. You can't
predict that, and right now with all this rain -- I was
unable to attend a meeting that took place at 9:00 at HC&S.
The EMI ditch that goes by our Kamole treatment plant is at
less than 25 million gallons, which is about 15 percent of
capacity. And if you wanted to try to say there's a drought
right now with it raining outside and with all the green
grass in Kihei, people would call you nuts. But we have
very low flows in the Wailua ditch right now. So you
cannot -- so my point is there's no way you can ever
completely design or plan for no drought.
BOARD MEMBER RAISBECK: Thank you, Mr. Chair. I
would like the question of adequacy of supply and how many
meters Pookela can support on the agenda.
VICE-CHAIR OKAMURA: I'll make a list and I'll
give it to Mike for him to develop the agenda next week.
Okay. Are there any other items? If not, I guess the
meeting is adjourned. Thank you, everybody.
(The meeting ended at 10:15 a.m.)
Department of Water Supply
County of Maui
200 South High Street
Wailuku, HI 96793-2155
Telephone (808) 270-7816
Fax (808) 270-7951