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WR 06/15/10

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WATER RESOURCES COMMITTEE

Council of the County of Maui

MINUTES

June 15, 2010

Council Chamber

APPROVED:

TRANSCRIBED BY: CAMMIE GILLETT

Registered Professional Reporter

Hawaii Certified Shorthand Reporter #438

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CAMMIE GILLETT, RPR, CSR #438

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2CONVENE:

9:03 a.m.

PRESENT: VOTING MEMBERS:Councilmember Michael P. Victorino, ChairCouncilmember Joseph Pontanilla, Vice-Chair (In9:45 a.m.)

Councilmember Gladys C. BaisaCouncilmember Sol P. Kaho'ohalahalaCouncilmember Danny A. MateoCouncilmember Bill Kauakea Medeiros (Out 11:35a.m.)

Councilmember Michael J. Molina

NON-VOTING MEMBERS:Councilmember Wayne K. Nishiki

Kimberley Willenbrink, Legislative AnalystTammy M. Frias, Committee SecretaryJock Yamaguchi, Executive Assistant toCouncilmember Wayne K. Nishiki

Jeffrey Eng, Director, Department of Water SupplyEdward S. Kushi, Jr., Deputy Corporation Counsel,

Department of the Corporation Counsel

ITEM NO. 13:Stephen Anthony, Director, United States GeologicalSurvey (USGS) Pacific Islands Water Science

CenterDelwyn Oki, Hydrologist, United States GeologicalSurvey (USGS)

Kelly Ruidas, President, Hui 0 Ka'Ike - Employeesof Hawaii Commercial & Sugar Company (HC&S)

Warren Watanabe, Executive Director, Maui CountyFarm Bureau

John V. Duey, President, Hui 0 Na Wai EhaMichael HowdenVictor Pellegrino, Hui 0 Na Wai Eha; Noho'ana FarmEdward A. Smith, Upcountry Advisory CommitteeLyn ScottRosemary S. Robbins, Water Oversight AdvisoryCommittee

Irene Bowie, Executive Director, Maui TomorrowFoundation, Inc.

ITEM NO. 1(1):Ron Montgomery, Upcountry Sustainability, KulaCommunity Association

Tom Hunter, Steering Committee Member, HaliimaileCommunity Garden

Ernest H. Rezents

STAFF:

ADMIN:

OTHERS:


Michael HowdenDain KaneEdward A. Smith, Upcountry Advisory CommitteeWilliam Jacintho, President, Maui Cattlemen'sAssociation

Lyn ScottGina FlammerOTHERS:Additional Attendees (10)

PRESS: Akaku: Maui Community Television, Inc.

CHAIR VICTORINO: ...(gavel)... Good morning. The

Water Resource Committee for June 15, 2010 will come to

order. Members that are here this morning, I'd like to

introduce. First of all, we have the Vice-Chair of the

Council, Mr. Mike Molina.

COUNCILMEMBER MOLINA: Good morning, Chairman.

CHAIR VICTORINO: Good morning.

We also have the lovely young lady from Upcountry,

Ms. Gladys Baisa.

COUNCILMEMBER BAISA: Thank you very much, Chair.

Good morning.


We have the representative from Lanai, Mr. Sol P.

Kaho'ohalahala.

COUNCILMEMBER KAHO'OHALAHALA: Good morning, Chair.


Our representative from East Maui, Mr. Bill

Medeiros.

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4COUNCILMEMBER MEDEIROS: Aloha and good morning,

Chair.

CHAIR VICTORINO: Good morning. Ooh, you're there.

That's working.

Our Council Chair and from the island of Molokai,

Mr. Danny Mateo.

COUNCILMEMBER MATEO: Good morning, Chair.


And myself, the Chair of the Committee, Michael

Victorino.

I'd like to introduce a Non-Voting Member -- those

are all the Voting Members, by the way, ladies and

gentlemen. And our one Non-Voting Member that's here this

morning, Mr. Wayne Nishiki, from South Maui.

COUNCILMEMBER NISHIKI: Good morning.


From the Administration, we have Mr. Jeffrey Eng,

the Director of the Water Supply Department.

MR. ENG: Good morning.

CHAIR VICTORINO: Good morning. Also, Corporate --

Deputy Corporation Counsel, Mr. Edward Kushi.

MR. KUSHI: Good morning.


We have our two legislative staff: Our Committee

Secretary, Ms. Tammy Frias; and our Legislative Analyst,


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Ms. Kim Willenbrink, which happens to be in the back. And

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we have two special guests today who are right now in the

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middle of trying to get some technical difficulties

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corrected. I have Mr. Stephen Anthony, the Director of the

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USGS Pacific Islands Water Science Center, and Mr. Delwyn

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Oki, a hydrologist from the USGS. And they're back there

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right now trying to get some of the technical difficulties

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taken care of.

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This morning, ladies and gentlemen, we have two

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items that we'll be discussing: WR-13, the Instream Flow

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Standards and Diversions. Mr. Oki and Mr. Anthony will be

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covering that subject a little -- right after we get through

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with public testimony. And then we will have also WR-1,

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Water Supply Rules, the Definition of an Agricultural

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Consumer. So we have quite a number of things to work on,

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and we have quite a number of testifiers. So I'd like to

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get started.

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Let me set the rules as far as testimony is

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concerned. Each testifier will be allowed three minutes,

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with one minute to conclude. I'm hoping the lighting system

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will be working, but that would depends if Ms. Willenbrink

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can be back to assist us or not. And if not, then we're

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going to have to do it by timer. Okay. I'll leave that up

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to you, Tammy.

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So -- and now I'll ask everyone in the gallery, as


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well as Members, if they would turn off all noise-making

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devices. Decorum will be adhered to at all times. So with

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no further ado, may I go ahead and start public testimony

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with no objections?

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COUNCIL MEMBERS: No objections.

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CHAIR VICTORINO: Thank you.

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We will start -- the first public -- first

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testifier for -- from the public will be testifying on WR-1.

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This is Mr. Ron Montgomery. And he is with the Upcountry

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Sustainability and Kula Community Association.

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Mr. Montgomery. And followed by Mr. Kelly Ruidas.

12 ...BEGIN PUBLIC TESTIMONY...

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MR. MONTGOMERY: Thank you, Chair. And I

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appreciate the opportunity to speak this morning. I brought

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a visual. This did not come from California or Mexico or

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Chile. It came from my backyard garden. And I'm not here

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as a backyard gardener to ask for, nor do I deserve

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agricultural water rates. But this is what this bill is all

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about is whether you're a big farm or a small farm, a

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nonprofit or a community garden, it's important for Maui to

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support and increase our ability to produce food for our own

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consumption on the island.

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And I want to commend the Chair for his openness

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and willingness to listen to and take ideas that are new to

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create the current version of the bill. It includes


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7provisions to prove that people are actually producing food

rather than watering their lawns. It's a step in the right

direction. And as a member of both of those organizations,

we do support the current bill. They say that a good

compromise is one where nobody is completely happy. And I

think that this is a case in point. There's still issues

related to the gross income levels, but this is definitely a

step in the right direction. And I thank you for your

openness on this.

And on another note, I want to thank not only the

work, but the stand that the entire County Council took on

this year's budget. I think you guys did something that the

State and our Federal Government should take a look at.

Thank you very much.

CHAIR VICTORINO: Thank you, Mr. Montgomery.

Questions for Mr. Montgomery to clarify his

testimony?

Seeing none, thank you.

Mr. Kelly Ruidas. And he will be representing the

employees of HC&S, followed by Warren Watanabe.

MR. RUIDAS: Good morning, Chair --

CHAIR VICTORINO: Good morning, Kelly.

MR. RUIDAS: -- Victorino. Good morning, Committee

Members. My name is Kelly Ruidas, President of Hui 0

Ka'Ike. Hui 0 Ka'Ike is a group of Maui residents,


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specifically HC&S employees, and those interested in

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agriculture who have come together to ensure that the

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central valley of Maui remains green and in productive

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agriculture. We also believe in the importance of other

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farmers, ranchers on Maui to provide us with local

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agricultural products. I come before you today to

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respectfully urge a recognition of off-stream users of water

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during discussions of off -- instream uses and impacts on

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streams by diversions.

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The press release yesterday by the Water Department

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emphasizes the risk associated with reductions in diversions

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without a complementary increase in new source development.

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Waikamoi is empty and Kahakapao is at 25 percent of

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capacity. Water will be pumped from the lower system,

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further impacting users of that system. As workers of HC&S,

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we know that -- that the watershed must be protected.

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Without water, we would not exist. Seven out of last ten

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years have -- have been USDA declared drought years on Maui.

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And this year, portions of Maui are in extreme drought.

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We know that we -- excuse me. We know as we see

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the low ditch levels coming into the plantation. We are

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very concerned that decisions have been made to restore

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additional water into the streams without commitment that

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there will be equivalent water development somewhere. The

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water that is being restored is currently used by someone.


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9The May 2010 East Maui IIFS decision requiring

stream restoration was done in addition to a restoration

order last year. 2007 and 2008 were amongst the driest

years in recorded history. If these years or condition

repeat, there will not be adequate water not only for HC&S,

which is already water short, but for Upcountry farmers and

ranchers, along with residents, small businesses, schools,

churches, hospitals and fire protection systems.

Mr. Eng, during his testimony before the

Commission, spoke to -- to this issue. And the Commission

staff agreed that there would be a problem. Yesterday's

press release speaks of an -- of empty reservoirs, and this

is before the release order and May decision. What will

happen when the release are implemented and effects flows

into West Maui, as those users have been on prevert --

conservation notice for some time?

There's great emphasis to protect streams, riparian

environments, and cultural uses. We do not disagree that

they are important. However, the people need water. Maui

is the most dependent of all -- Maui is the most stream

dependent of all counties. The Commission on Water Resource

Management Chair, Laura Thielen, stated in her closing

remarks at East Maui -- and we believe it is part of the

final decision -- that Maui must identify means to reduce

it's independence on surface water. The decision in the


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1 0past few weeks have been serious -- have serious impacts on

all of us who live on Maui and has set major precedence for

the future water decisions in the State.

We respectfully urge the Council to take serious

consideration of drought periods in discussion about

instream flows. The current water short situation clearly

demonstrates we do not live in an average world. Not only

HC&S, but the people of Upcountry, Haiku, Pukalani, Kahului,

Kihei, Maalaea, Wailuku and Waihee all depend on this water

for their livelihood and living. The average water flows

are not available during droughts. Planning for -- for the

needs of the community during this periods must be a

priority.

Thank you for allowing me to provide our opinion on

this important matter.

CHAIR VICTORINO: Thank you, Mr. -- Mr. Ruidas.

Any questions for the testifier for clarification

of his testimony?

Seeing none, thank you very much.

MR. RUIDAS: Thank you.

CHAIR VICTORINO: Next testifier will be Warren

Watanabe. He's with the Maui County Farm Bureau. He's the

Executive Director, followed by Mr. John Duey.

MR. WATANABE: Good morning, Chair Victorino,

Members -- Members of the Committee. I -- as you stated,


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11I'm Warren Watanabe, Executive Director of the Maui County

Farm Bureau, representing Maui's commercial farm and ranch

families and organizations. We are all dependent upon

stream diversions for our livelihood. Therefore, the

subject before you today is of personal interest to all of

our members.

The latest Hawaii Drought Monitor, dated on

June 10th, stated that Hawaii is in -- is the driest State

in the nation -- specifically, the Big Island and Maui

County. In agriculture, we -- we know this is real. Our

ranchers are struggling as pastures are dry and they

struggle to meet the feed and water needs of their cattle.

In the recent past, this has happened many times,

emphasizing the need for us to focus on creative ways to

provide -- to provide agriculture with water during these

dry periods. While we appreciate the Water Commission's

efforts to strike a balance, we found decisions to restore

water during the summer very difficult to accept.

Ironically, the decision of West Maui was issued on June

10th, the same day the new Drought Monitor report was

released.

As farmers and ranchers, we understand the

implications of these decision, specifically, that it has

placed the viability of our farmers, of our members at

further risk. It is, therefore, critical that new source


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12development projects be -- be advanced and implemented

before any further reductions in usage is supported. Thank

you.

CHAIR VICTORINO: Thank you, Mr. Watanabe.

Any -- any questions for the testifier to clarify

his testimony? Seeing none, thank you.

Next is Mr. John Duey. And he's with Hui 0 Na Wai

Eha, followed by Mr. Tom Hunter. Good morning, Mr. Duey.

MR. DUEY: Good morning, Mr. Chair Victorino and

Council Members and the residents here. My name is John

Duey, President of Hui 0 Na Wai Eha, resident of --

landowner in Iao Valley. Just got back from the mainland

last night at 7:30. But I did hear the -- I got a call

about the terrible decision the Water Commission made on the

-- on the four streams, Na Wai Eha. It was a shock. Very

disappointed, disturbance -- disturbing. After six years,

and this is what we get?

The majority of the Commissioners have no respect

for the law. The -- the -- the contested case hearings

officer, Dr. Miike, had recommended -- as you may well know,

but I'll remind you. He recommended 14 million restored to

Waihee, three and a half to Waiehu, 13 to Iao, four to

Waikapu. The final decision voted on by the majority, not

including Dr. Miike: Ten for Waihee, two and a half for

Waiehu, zero for Iao, and zero for Waikapu.


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13If the Commissioners would have read the law, I

think they would have made a different decision. This will

be appealed, which only makes sense. The three things that

are left out here: Number one, two, or three, however order

you want to put them in. Number one, I would say recharge.

Dr. Oki will go into that. I don't want to steal his

thunder here. I heard it -- seen his report earlier, and

I've read it. By restoring water to streams, it will make a

large recharge to the aquifer, which we're worried about.

Number two or number one or three is traditional

customary practices, which are being left out for the two

streams. Number three -- or one, two or three is the stream

life. I have not read the report. I don't have it yet.

But I did hear some comment about the 20-foot fall in the

stream that the Corps put in in '78, which is right below

the -- right below Market Street where Spreckels Ditch

crosses, the one that says there's -- the fish cannot

migrate up there, but they can. The (inaudible) has proven

that, said that. The 'o'opu can climb -- can climb, climb,

climb.

In fact, I've seen the evidence of that myself

about two months ago at Olowalu where we were involved in a

project. There was a small, little -- in a ditch, there was

some boards there, and the -- the 'o'opu was just flat

against that board moving up. It wasn't very high, but he


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14was going upstream, straight up in the air. Straight up.

That's the first time I witnessed that myself, so I can say

it does happen.

I want to say we're not -- we're disappointed. But

imua. We will -- like Dr. Miike said, the law will prevail.

The law is on our side. It happened at Waiahole. Same

thing happened, they didn't put water. The Supreme Court

slapped them in the face. The Commission said you put water

back in the stream, and they did. So we have all confidence

in the world it's going to happen here. But for now, imua.

And thank you for listening.

CHAIR VICTORINO: Thank you, Mr. Duey.

Questions for the testifier to clarify his

testimony?

Seeing none, thank you, Mr. Duey.

The next testifier will be Mr. Tom Hunter. And he

is with the Haliimaile Community Garden, Steering Committee

Member, followed by Ernest Rezents.

MR. HUNTER: Good morning, gentlemen. And thank

you for taking the time to hear our requests. I represent

Haliimaile Community Garden, which is a group of individuals

who have 10 by 20 gardening plots in a community garden

atmosphere doing organic gardening, growing mostly

vegetables, few fruits. This is located behind the

community of Haliimaile.


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15And our request is to be sure that whenever you are

doing the definition for agricultural consumers, that you be

sure to include a provision that allows a community

association, such as ours, to fall under the definition of

an agricultural consumer because we would like to be able to

continue this effort. Really, that's my request. I'll be

brief.

Any questions, sir?

COUNCILMEMBER NISHIKI: Yeah.

MR. HUNTER: Yes, sir.

CHAIR VICTORINO: Okay. One moment, please. Have

you read the latest version of the bill?

MR. HUNTER: No, I have not.

CHAIR VICTORINO: Okay. There is a provision in

there. And I want to make sure that you are notified that

community gardens were a part of the last revision --

revised bill.

MR. HUNTER: Yes.

CHAIR VICTORINO: So we -- we did not -- in fact,

when the sustainable groups met with me, that was one of the

big issues, and we made sure that was inclusive.

MR. HUNTER: Very good.

CHAIR VICTORINO: Okay. So -- so just so that

you're aware that the last version that is out now -- in

fact, the last two versions, that has been included in


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16there. Okay?

MR. HUNTER: Okay.

CHAIR VICTORINO: Questions from the Members?

First of all, I'll start with Ms. Baisa.


And thank you, Mr. Hunter, for being here this

morning. Just a quick question. We have a recommendation

from the Water Director that a community garden should meet

a minimum net cultivated parcel size of 22,000 square feet,

and have a group of no less that 25 active participants.

Would your group meet that?

MR. HUNTER: We have about 55 active participants

at the moment.

COUNCILMEMBER BAISA: Uh-huh.

MR. HUNTER: And we have space for 95. The square

footage --

COUNCILMEMBER BAISA: 22,000 square feet net

cultivated.

MR. HUNTER: Well, that was -- let me do some math

here.

We would have -- the way we're set up now -- 19,000

square feet.

COUNCILMEMBER BAISA: So you wouldn't make it,

then. Okay. Thank you very much for coming this morning.

MR. HUNTER: Thank you. Anyone else?


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17CHAIR VICTORINO: Okay. Anybody else has any

questions for the testifier? Mr. Nishiki.

COUNCILMEMBER NISHIKI: No. Yeah, my question

is -- was going to be have you read the bill. But being

that you haven't, please read the bill and see if you've got

any other input.

MR. HUNTER: Yes, sir.

COUNCILMEMBER NISHIKI: Because you are waivered in

here. I think there's a bill out there too. If there's

not, then please get one.

MR. HUNTER: Okay.

COUNCILMEMBER NISHIKI: Thank you.

MR. HUNTER: Thank you.

CHAIR VICTORINO: Okay. Thank you, sir.

Okay. Next testifier will be Mr. Ernest Rezents,

testifying on his behalf, followed by Michael Howden.

MR. REZENTS: Oh, excuse me.

Good morning, Mr. Chairman and Committee Members.

Thank you for taking my testimony this morning. I speak

about the gross income level to qualify for ag water rates.

That's what I'm speaking on today. I believe that the

$10,000 gross farm income is much too high to qualify for ag

water rates.

CHAIR VICTORINO: Mr. Rezents, before you go on.

Again, I -- I -- I -- the latest version --


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18MR. REZENTS: I have not read the bill,

Mr. Chairman.

CHAIR VICTORINO: Not the bill now, okay.

MR. REZENTS: Okay.

CHAIR VICTORINO: The bill is 2,500.

MR. REZENTS: Okay. Okay.

CHAIR VICTORINO: Okay. Just so that -- I'm

beginning to feel like maybe not -- you guys not really

reading the last version. So go ahead.

MR. REZENTS: Things change so rapidly.

CHAIR VICTORINO: Yes, sir. Thank you.

MR. REZENTS: And I'm not as current as I should be

maybe.

CHAIR VICTORINO: Well, that's okay. That's okay.

MR. REZENTS: Okay.

CHAIR VICTORINO: Okay. Go ahead.

MR. REZENTS: Nonetheless, what I have to say has

more than this.

CHAIR VICTORINO: Okay. Go ahead.

MR. REZENTS: All right. I recommended that you

consider $1,000, not the $2,500. This is consistent with

the national USDA Farm Bill guidelines. The farmer knows

this dollar figure. A high-dollar figure forces honest

people to become dishonest to qualify for ag water rates,

very easily done with a sharp pencil. We should encourage


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small farmers because they supply commodities for unique

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niche markets. This reduces our importation of food, builds

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up our economy, and keeps Maui County green.

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I suggest that you keep the 30,000 gallons before

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the ag price break takes effect. This by itself limits the

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number of farmers because it costs $120 at $4 per thousand

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gallons upfront. So that's the limitation right there.

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That's the bottleneck.

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I've heard about water cops. And I hate snoops.

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But if you need to have someone check on ag water rate

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consumers, I would contract for the services of such a

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person, then you don't have a County position, nor fringe

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benefits to pay. And this would be on an as-needed basis.

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But I dislike snoops. A big-time caution, even more

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important is this. And listen carefully. Be careful what

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dollar income you use to define agriculture. It is very

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easy to use the same farm dollar gross income figure for

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property tax purposes. There are many farmers who do not

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meet $2,500 or $10,000 or $5,000. And I am one who makes

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less than $5,000.

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Now, if they were to use that for my property taxes

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in a gulch, I couldn't afford that land. So the -- be very

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careful how you define agriculture. And I think even $2,500

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is too high. Go down to 1,000, and keep the 30,000 gallon

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water consumption set before you qualify for the ag water


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20rate. So that's my presentation this morning. And I'm a

small farmer and I do not take ag water rates because I

still have a trickle in my stream, thank goodness. But if

that dries up, I will have to use some gallons. But I don't

think my few head of cattle will justify ag rates. But I

speak for the public in general. Thank you very much.

CHAIR VICTORINO: Thank you, Mr. Rezents. I'm glad

that we were able to clarify that, you know.

MR. REZENTS: Yes. Thank you.

CHAIR VICTORINO: Okay. Questions for the

testifier?

Seeing none, thank you, Mr. Rezents.

Michael Howden, and followed by Mr. Victor

Pellegrino.

MR. HOWDEN: Chairman Victorino, Members of the

Committee. I -- I think with John Duey, I -- I find the

Commission on Water Resource Management's decision almost

inexplicable. It flies in face of -- or is contrary to

established law throughout the State of Hawaii in terms of

Public Trust Doctrine.

I think with -- in relation to the plantation,

there was a sentence that the Commission on Water Resource

Management included in their preliminary report. And it

says with decreasing trends in stream flow, East Maui

streams will continue to be an insufficient supply of


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21

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surface water needs for the plantation regardless of interim

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IFS adoption, unquote.

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I think what was really striking to me in the last

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meeting, the last Commission meeting in Paia, was the lack

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of any sense of compromise, at least on the part of the

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plantation and part of conventional agriculture. That was

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in stark contrast to what we had seen at previous meetings,

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where employees of the plantation expressed their heartfelt

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concern at the predicament for residents. Na Kua'aina, the

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residents of East Maui.

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What Kelly Ruidas said today in terms of Waikamoi

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being empty, Waikamoi, the two reservoirs there -- which

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are, I believe, each 15 million gallons -- are simply used

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as transition reservoirs that, you know, we don't use those

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for water storage because their in such horrid disrepair.

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There's tremendous amounts of silt in the bottom of those

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reservoirs, and they need relining. I mean, that would seem

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to be one of the most economic ways to create another 30

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million gallons of storage. And I would suggest that

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Well 7, which produces 20 million gallons a day, could be

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reactivated and contribute to a water-short plantation.

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I would also question -- I mean, we talked a lot --

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I mean, there are brilliant people who have been involved

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with -- horticulturists who have been involved with the

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plantation. But I think with changing weather patterns,


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sugar, water hungry tropical grass grown largely in sand

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dunes in Central Maui is perhaps a poor choice for a primary

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crop for the plantation. And regardless of this, where

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we're -- where we're losing it, both in East Maui and for Na

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Wai Eha, is that we're not really caring for the watersheds.

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And as Sumner Erdman pointed out, the new appointee

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to the Commission, who's recused himself from this, it

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doesn't matter at all who controls the water if you haven't

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taken care of the watersheds. You know, he was shocked.

10 And I think Commission Members were shocked at the Na Wai

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Eha watersheds. And that's where we need to look. And

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please listen carefully to what Dr. Anthony and Dr. Oki will

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be presenting to you. Thank you.

14

CHAIR VICTORINO: Thank you, Mr. Howden.

15

Any questions to clarify the testimony of the

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testifier himself?

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Seeing none, thank you, Michael, for being here.

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MR. HOWDEN: Thank you.

19

CHAIR VICTORINO: Mr. Victor Pellegrino. And he

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will be speaking on behalf of Hui 0 Na Wai Eha and

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something -- I cannot read your writing. I apologize, sir.

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I know you was my teacher, but your writing --

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MR. PELLEGRINO: Noho'ana Farm.

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CHAIR VICTORINO: What was that?

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MR. PELLEGRINO: Noho'ana Farm.


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23

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CHAIR VICTORINO: Oh, Noho'ana Farms. Okay. Thank

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you very much.

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MR. PELLEGRINO: Good morning, Chair Victorino and

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County Council Members. I'm here to ask you to do what is

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right. The recent decision on Na Wai Eha water restoration

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is a sham, a slap in the face of taro farmers and those who

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know that a stream has a right to its own life. It is the

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way nature intended.

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For 150 years, Maui's streams have been raped by

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large sugar companies and water barons. In recent

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decision -- a recent decision, the Water Commission gave

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Wai -- Waikapu and Iao Streams zero water. Is the State

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Water Commission a political body or the people's adversary?

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You recall I am an English professor. I gave the

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Water Commission report an F. Maui's Iao Aquifer is nearing

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salinity. A USGS study advises the best and cheapest way to

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maintain the aquifer is to return stream flow. If the

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streams continue to be dry and water is diverted for large

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monocropping, the scenario for our children will be an

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environmental disaster. All kalo farmers want to do is grow

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food. Why can't they? Kalo farmers have been held hostage

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by HC&S and Wailuku Water Company. These companies share

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little, if nothing, and will continue until they are forced

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to obey the already existing law which the DLNR and Water

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Commission have refused to uphold.


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The Water Commission has favored big business and

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nonsustainable companies, such as HC&S and Wailuku Water

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Company. While they collect dollars for their

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shareholders, nonsustainable and -- nonsustainable -- excuse

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me. While they collect dollars for their shareholders, our

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small sustainable farms are being choked dry of water,

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prevented from providing healthy food, and earning an honest

8

living. Maybe HC&S should try to grow dry land sugar for

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150 years so they can begin to understand the plight of kalo

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farmers today who have waited six years for water

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decision -- a water decision, which is now environmentally

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inappropriate.

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Next, we forgot history. The Na Wai Eha was the

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largest contiguous kalo growing region in Hawaii. When the

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Hawaiians lost their use of water, they lost their food,

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their culture and their jobs by hundreds and hundreds and

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hundreds. They are the victims of sugar gluttony. Does

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Mr. Benjamin of HC&S need a lesson in Hawaiian history and

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man's exploitation of the natural environment, taking the

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water from the Hawaiians that was necessary to grow healthy

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food and leaving them without jobs? I urge all of you to

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read the 1978 State Constitution and Article -- Article 11,

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Section 1, which provides all the information regarding the

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rights of water for the people of Hawaii, not private

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industry which is now taking our water.


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25

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Water to be managed well must be taken out of the

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hands of private enterprise and returned to the rightful

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owners, the first owners being the dry stream beds. The dry

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stream beds own the water. And the second owner is the

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people of Hawaii. Instead of executing the environment,

6 maybe we need to rid our County of HC&S and Wailuku Water

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Company and put the water in the hands of sustainable

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farmers. They will keep Maui green. Aloha.

9

CHAIR VICTORINO: Thank you, Mr. Pellegrino, for

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your testimony.

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Any questions for clarification of the testimony as

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presented by the testifier?

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Seeing none, thank you for your due diligence,

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Mr. Pellegrino.

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MR. PELLEGRINO: Okay. And as a final invitation,

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I've always asked the County Council Members to come up to

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my farm. I would like to see -- have you see our dry lo'i.

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We have two and a quarter acres of dry land. So anytime,

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please call me, come up to Noho'ana Farm and find out what's

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real. Thank you.

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CHAIR VICTORINO: Thank you, Mr. Pellegrino.

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Next testifier will be Mr. Dain Kane. He's also

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testifying on WR-1, followed by Mr. Edward Smith. Mr. Kane

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is testifying on his behalf.

25

MR. KANE: Chair and Members, good morning. Thank


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26you for allowing me this opportunity to testify. My name is

Dain Kane and I live in Wailuku and I'm testifying on behalf

of myself.

I'm a small farmer in Wailuku. I live and farm in

a County approved agricultural subdivision, specifically it

was approved back in 1998 by a previous sitting body. A few

of you Members were sitting on that body when that

agricultural subdivision was approved. Currently, we have a

private water system. However, I'm here to testify because

who knows what the outcome will be regarding Na Wai Eha. I

might end up being a water user from the County. So I'm

here to testify as a farmer who may be impacted by what you

folks are referring to today on Item 1(1) for the Water

Resources Committee.

I'm going to reference my testimony on the June 8th

memorandum from Mr. Kushi, Corporation Counsel. I guess one

point I'd like to ask for in your discussion -- not now, but

in your discussion is to ask Mr. Kushi to be specific in

their concerns as to why they're not signing off as to form

a legality of the specific section that is cited on that

cover page. I'll walk through the sections, Members, so

that you can follow along if -- if -- if you'd like to.

Section 1, the ag consumer, regarding the minimum

annual income. I'm in agreement with Mr. Rezents, as well

as other testifiers. I -- I believe that the $2500 figure


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27

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may be too high, and that the $1,000 figure, I think, is

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something that's adequate. Keep in mind that there's other

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departments that are dealing with ag. Department of

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Planning, Department of Taxation all deal with that figure.

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Personally, I made $7,500 -- just over $7,500 on my

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apple banana. Last year I grew just over 10,000 pounds,

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which, in a 40-pound box, if I piled it up in this room, I'd

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probably fill up the whole side of this room with what I

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grow. And so a $10,000 figure, let alone a $30,000 figure

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that has been previously discussed and considered

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illegitimate -- or whatever the term was used in the

12

previous discussion -- I find interesting. But the reality

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is 10,000 pounds of bananas is -- is -- I don't think is

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illegitimate. So I would ask you folks to consider the

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lower figure.

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Tied into that, if you folks don't consider the

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lower figure, then jumping over to Section 3, under

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Section -- it's on page 3 of your document, a nonprofit

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organization may qualify for ag water rates. As far as the

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agricultural charitable donations component, I don't see.

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And so I know that this is only talking about what -- well,

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let me be clear on -- I'll give you an example.

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I'm the producer. I have 200 pounds of banana. I

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deliver it to the store and the store tells me, you know

25

what, Dain, slow. So I only get 100 pounds I can take. So


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28I stuck with 100 pounds. What I gonna do with that 100

pounds? So what if I want to go deliver it to Wailuku

Hongwanji Preschool, or if I want to go deliver it -- as

long as they give me something that shows legitimately that

I'm giving as a charitable donation, why wouldn't I be

credited with that towards the minimum amount that you folks

are discussing? So please consider that in your -- in your

deliberations, Members.

The only other thing I would talk to -- and I'm

running out of time, sir, so I'll be very brief. All I ask

is that in Section 2, subsection b, is there consistency of

the requirements to other departments that the Water

Department is asking for in this? There's three items

specifically that are being requested for. Make sure that

there's consistency in what's being requested because it's

just a nightmare to have consistency with what taxation asks

for; plans and this and that. Department of Planning asks

for various things to prove that you're doing ag. And now

with Water, you're also being asked to do -- provide that.

So please do the homework before you make the

decision because you might make it even more difficult than

simplified for us guys who are doing ag. Thank you.

CHAIR VICTORINO: Thank you very much, Mr. Kane.

Any questions for the testifier for clarification?

Yes, Mr. Nishiki.


WR 6/15/10

29COUNCILMEMBER NISHIKI: Yeah. Dain, you mentioned

that in your explanation of 100 pounds donated to a

nonprofit, they give you a paper that states what?

MR. KANE: And if I may, Mr. Chair, just to

clarify. What I'm saying is in your document that you folks

have as the June 8th, in there, there's a section that talks

about a nonprofit organization may qualify for ag water

rates for a given year by submitting annual written

application --

COUNCILMEMBER NISHIKI: Right.

MR. KANE: -- copy filed as well, showing an

organization's annual agricultural charitable donations. My

request specifically is for you to consider that it not be

limited to just nonprofit organizations. It would be me,

the private farmer, who has excess produce who would like to

get credit for donating that to something that's going-- I

consider it legit if I donate it to a preschool where you

got preschool children eating bananas, or whatever produce

being donated to whatever group that's going to benefit from

that.

I'm just saying, Mr. Nishiki, if there could be

consideration of that. And as long as I can prove for --

you folks are asking for Federal Tax Returns, you're asking

for all kinds of stuff -- that there at least be something

there that recognizes or identifies that type of donation

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from me, the producer, to a -- an entity that would accept

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it and provide it to whoever they -- they provide it for.

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COUNCILMEMBER NISHIKI: Okay, yeah.

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MR. KANE: And so just for discussion, you guys.

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COUNCILMEMBER NISHIKI: I guess -- yeah. That's

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under the waiver. But it would probably have to be dealt

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with under your income.

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MR. KANE: I agree, yes.

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COUNCILMEMBER NISHIKI: When you file -- when you

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get that nonprofit and they give you that money they give

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you that says -- is there a worth? Does it -- do you have

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to show what it's worth?

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MR. KANE: I would say yes. They -- they can

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provide you something. Now, they wouldn't provide the

15

worth. The worth would probably be determined by -- whether

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it's the Federal Government has some -- someplace. Yeah,

17

IRS or someplace else.

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And just to give you an example, Mr. Nishiki, it

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will be very brief. Apple banana, wholesale, 50 cents to a

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dollar range. Yeah, it depends on the quality of the

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product. So halfway, 75 cents. If I donate 1,000 pounds in

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a given year, then why wouldn't I be given a credit of $750

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of donate -- charitable donation. And I'm doing it because

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the banana not going to wait for me or going to wait for

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supply and demand, you know, for selling the bananas. You,


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31

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as the store guy, tell me I cannot take your banana, what am

2

I going to do?

3

So that's why I'm asking you folks to consider

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that. That way, you know, if you're going to get focused in

5

on the dollar amount, if you're going to go higher than the

6

thousand -- or even not. But whatever number you folks

7

decide, at least consider that as part of the minimum that

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you're going to require to qualify to -- for the water rate.

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COUNCILMEMBER NISHIKI: Right. You would take it

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as a -- probably as a deduction in your taxes?

11

MR. KANE: Correct.

12

COUNCILMEMBER NISHIKI: Now, if you could show it,

13

that it was worth that much and that would be in addition to

14

whatever you sell as a separate piece of paper?

15

MR. KANE: That is correct. Yes, sir.

16

COUNCILMEMBER NISHIKI: And finally, you mentioned

17

about you maybe have to go onto the County waterline because

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maybe of the Na Wai Eha decision. Do you -- does that ag

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subdivision get water from the Waikapu or the Iao intake?

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MR. KANE: And forgive me, I -- I should know. But

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off the top of my head, it's a private -- it's a private --

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we're under Wailuku -- we have -- Wailuku Country Estates

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has a private water company that has a contract with Wailuku

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Water Company. And so we will be impacted somehow at some

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point negatively, positively, who knows.


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32

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The reason I'm here to testify and I made that

2

point is because personally I'm not impacted by this right

3

now because I'm not asking for water use from the County.

4

Because I think we're in the context of this being County

5

water, yeah, for ag? But I am not. But I'm here to testify

6

because I believe for public good as well as me might get

7

impacted personally, I think if I end up -- if a scenario

8

occurs where I can no longer get private water and I have to

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come to the County to get my water to continue my farming

10

operation, then this becomes something that personally

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impacts me and my livelihood.

12


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Thank you, Mr. Chair.

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Any other questions for the testifier?

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Seeing none, thank you.

17

MR. KANE: Thank you, Chair. Thank you, Members.

18

CHAIR VICTORINO: Next testifier is Mr. Ed --

19 Edward Smith. And better known from the Upcountry Advisory

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Committee. Good morning, Smitty.

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MR. SMITH: Good morning, everybody.

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COUNCILMEMBER BAISA: Good morning.

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MR. SMITH: Chair Victorino, Molina, Baisa. My

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name is Smitty from Pukalani, Maui, Hawaii. I'm here today

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to speak on the general issues here. As you all know, the


WR 6/15/10

33

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problems we are having is old, very, very old history, bad

2

history that is still with us today. And this bad history

3

comes in many different forms.

4

We've heard testimony from Kane and several other

5

people about the small guy, the farmers, or those who have

6

attempted to do farming on land, agricultural land that they

7

bought as I did way back in the '60s from Frank Munoz, land

8

that was zoned Agricultural RU-5, and it's still

9

agricultural land. But because of these water problems,

10

some of us couldn't even get off the ground. We couldn't

11

even get to first base without a baseball bat. And this is

12

back from 1964, 1965 to this present date. I think this is

13

ridiculous, this -- this bad history of hanging on, hanging

14

on to our (inaudible) this long, not giving us the

15

opportunity to do what we all need to do in life. And

16

that's to feed ourselves, our friends, and our family

17

members, and like Kane says, to give away to other people

18

that's in need.

19

I started off -- I'll give you an example. We've

20

heard Kane's problems and some of the member's here. I -- I

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started off -- I started off buying land from Frank Munoz,

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one acre. And I had a lot of other land available to me,

23

agricultural land Upcountry. Four acres up -- up to eight

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acres. I start off, I was getting agricultural water rates.

25

Then when Elmer Cravalho was Mayor, we had a bad drought, as


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WR 6/15/10

34we get every single year. Like I said, bad history. My --

my water meter was yanked off the property and with

livestock on the property.

I was hauling water with a kid's -- a toy -- a red

wagon, going all the way down the street to my

father-in-law's house to haul water back up to the property

in five-gallon plastic buckets to feed the horse, the billy

goats, the pigs, and everything else I had. Then that

was -- that was bad enough. But the -- the problems

compounded. They took away my agriculture rates because of

that, after they took my water meter out. And till this

day, I have not been able to use the land that I bought the

land for.

Molina's dad here raised chickens up in Upcountry.

That paid for him to go to school, college and everything

else. That was great. That's what it's all about; using

the land to feed yourself, to make a little money, to send

your children to school, to buy medicine, exactly what you

need, what you personally need for yourself and your family

members. A lot of people cannot do this because we have a

problem with some people that are greedy on the island of

Maui. That's the plantation.

I read in the newspaper, they made over 18 -- I

think it was $18.3 million profit after all their expenses

last year. They're not losing money. They're not losing


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35money. They have a -- they have a -- they have a -- a

central water supply that they say would be too costly to

bring back online. With $18 million, they can bring

anything back online.

So my main (inaudible) -- my main issues here was I

heard from some of our members last night that the County

was thinking about taking this issue to court, this State's

Water Commission to court. I hope you folks all -- it's

thinking of going in that direction. Take this to court and

get it over with. Hey, from 1964, I bought land Upcountry.

The problem is still with us, and it will be with us for the

next generation. Hey, this is too much. We had it. We

folks are -- you folks -- the water should be controlled --

these water issues should be decided on by our County

Government, not somebody up in the State building. This is

our water.

Just like they're thinking of putting up windmills

on the top of our mountain and give -- taking the

electricity to feed Honolulu. That's our wind. That's our

mountain. They want -- they want -- they want their wind

towers, put 'em on their mountain. Leave us alone. Don't

decide for us. We have our Government. You people here are

our Government.

CHAIR VICTORINO: Mr. Smith?

MR. SMITH: We need you folks to make the decisions


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WR 6/15/10

36for us.

CHAIR VICTORINO: Okay. Can you conclude, please.

MR. SMITH: It's concluded. Anybody have any

questions?

CHAIR VICTORINO: Let -- let me handle that part.

Can I ask the question? Okay.

MR. SMITH: Sure.

CHAIR VICTORINO: Thank you, Mr. Smith. Okay. You

like my job? Please, one moment.

MR. SMITH: You not fired.


Any questions for the testifier for clarification

purposes?

Thank you, Mr. Smith, very much. Appreciate it.

MR. SMITH: Have a good day.

CHAIR VICTORINO: Before I introduce the next

testifier, I'd like to recognize -- and I apologize.

Earlier, I failed to say that he was excused, that he'd be a

little bit late. But I'd like to recognize our Budget and

Finance Chair and the Vice-Chair of this Committee,

Mr. Joseph Pontanilla.

VICE-CHAIR PONTANILLA: Good morning.

CHAIR VICTORINO: Thank you, Mr. Pontanilla.

Okay. So moving right along with testimony on WR-1

will be Mr. William Jacintho. And he'll be speaking on


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WR 6/15/10

37behalf of the Maui Cattlemen's Association, followed by Lyn

Scott.

MR. JACINTHO: Good morning, Council Members. My

name is William Jacintho. I'm a lifelong resident of Kula

and a fourth-generation farmer and rancher, with another

ag-related day job, while my wife works the farm full-time.

I'm also the President of the Maui Cattlemen's Association,

as well as a member of other agriculture-related

organizations.

I've had the opportunity to discuss my concern with

Member Victorino on two occasions. And he has been very

understanding of the livestock concerns. I'm here today to

represent the many people who are unable or don't want to be

here to testify about the issue. And I must say, I myself

don't want to be here. But we farmers on the bottom need

representation. These are the beginning farmers, the

ranchers, and the ones that's trying -- and the one that's

trying to pass it on.

According to the USDA Hawaii Agriculture

Statistics, Maui has 165 registered farmers that make

between 25,000 [sic] and $5,000; and 478 registered farmers

that make less than 25,000 [sic]. I do believe these 56

percent are legitimate farmers and ranchers. We're all

having a problem with the dollar amount required for the

proposed country, County ag water rate requirement. Those


WR 6/15/10

38

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of us who do not make the requirement will not be able to

2

receive ag benefits. This is a cost that is four times the

3

amount and is very hard to swallow when you're trying your

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best not to waste and to turn a profit.

5

In agriculture, farmers have their up years and

6

their down years. Between the farmers scrambling and an

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appeal board looking for justification, we're all going to

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waste a lot of time going crazy. It only complicates things

9

and will not achieve our goal. If we're to focus on ag

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water -- focus ag water on ag-related things, then someone

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has to physically see that that happens. They do this on

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the mainland, and it works.

13

A dollar number will eliminate an appeal board. If

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there needs to be a dollar figure, then $1,000 is what the

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USDA uses to define a farm. And most farmers are used to

16

accepting that number. Thank you for your time.

17

CHAIR VICTORINO: Thank you, Mr. Jacintho. And,

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Mr. Jacintho, you gave me part -- written testimony, which I

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think you gave to everybody. And you said 25,000. I think

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you met 2,500. Yeah?

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MR. JACINTHO: That's what I meant.

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CHAIR VICTORINO: Okay. Good. Because I was all

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nervous reading yours and I heard something --

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MR. JACINTHO: You think you nervous?

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CHAIR VICTORINO: Oh, thank you. I was scared for


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WR 6/15/10

39a moment there. Okay. So you --

MR. JACINTHO: Thanks for correcting that. I feel

better now.

CHAIR VICTORINO: Yeah, the figure is 2500 -- I

mean -- yeah, $2,500 to $5,000 was the 165 registered

farmers; and 5 -- 478 that make less than $2,500?

MR. JACINTHO: Correct.

CHAIR VICTORINO: Thank you very much. I just want

to make sure that I -- we got those figures right.

MR. JACINTHO: Yeah. You have that too.

CHAIR VICTORINO: Yeah.

MR. JACINTHO: That little page that we've gone

through.

CHAIR VICTORINO: Yeah, thank you.

MR. JACINTHO: Thank you.

CHAIR VICTORINO: Okay. I just wanted to make that

clarification, ladies and gentlemen.

Questions for the testifier? Yes, Ms. Baisa?

COUNCILMEMBER BAISA: Yes. Thank you, Chair.

And thank you, William, for being here this

morning. I know that you have another job and probably

would prefer to be here -- there. But it's really important

that we hear from people in the real world. And obviously,

you have a day job, but you also do cattle farming,

ranching?


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40MR. JACINTHO: And a nursery.

COUNCILMEMBER BAISA: And a nursery too. And based

on your personal experience, you think that the $1,000

figure is the best thing for us to do?

MR. JACINTHO: Honestly, the best thing would be

zero --

COUNCILMEMBER BAISA: Oh.

MR. JACINTHO: -- mainly because it's such a hassle

with the appeals. And I sat on the ag definition committee

for a year and a half. This is four or five years ago. And

we went over and over with different situations, different

battles from RPT -- everybody that has some kind of interest

or involvement. And it is very difficult. And I -- I just

see the appeals board going through the same thing. And

whether it's zero or a thousand, anybody can put a number

down. But at zero, you eliminate this whole appeal thing

because that's what's going to trigger it, the dollar

amount.

COUNCILMEMBER BAISA: Okay. So if we take away

the -- the number --

MR. JACINTHO: Uh-huh.

COUNCILMEMBER BAISA: -- then what are the factors

you think we need in order to give this ag rate?

MR. JACINTHO: I think the same that's in, the

30,000 gallons, I feel that is adequate. I also feel if you


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41really want to be sure someone is using ag water for ag,

someone needs to physically go visit. Same like B&Bs,

whatever other problems the County had, somebody physically

had to go and check it out. I think that would be a lot

simpler, a lot less costly, more efficient thing to do

honestly.

COUNCILMEMBER BAISA: Thank you very much for your

mana'o. I think you make a lot of common sense. Thank you.

CHAIR VICTORINO: Thank you. Any other questions

for Mr. Jacintho?

Seeing none, thank you, Mr. Jacintho, very much.

MR. JACINTHO: Thank you very much.

CHAIR VICTORINO: Next testifier will be Lyn Scott,

followed by Rosemary Robbins. And Ms. Scott will be

testifying for herself.

MS. SCOTT: Good morning, everyone. Aloha

kakahiaka kakou.


MS. SCOTT: Good morning. My name is Lyn Scott. I

come from Honopou in East Maui. And we are the litigants

contesting the HC&S's taking of water from East Maui

streams. I do let -- need to let you know that the IIFS

standard that was set in September of 2008 for Honopou

Stream has not been met. We have never had our 1.2 million

gallons a day, especially on a consistent basis.


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42For me, this pretty much impacts my life. I'm not

able to grow taro as I should. My water is not cold. We

don't have the 'o'opu in our stream. Our estuary at the end

is dying. We no longer have black crab. Fishing is very

poor. You know, taking all this water from the streams is

not going to help the watershed. That's not going to

protect it. Leaving something in the stream will. The

Commission on Water Resource Management I feel did not do

its job. As a matter of fact, I do have a conference call

with them today at 12:00 to discuss my issues with the

stream.

And I think what really needs to be done is to have

monies put back into this. Because right now, they are only

working with two persons on the Commission. And I think

there needs to be more help there. Because we've been

waiting all this time. And all this could have been done

within one year. So far, nothing has been done on the

Wailua Ditch. So the head waters from Honopou Stream has

never seen the ocean since 1932, and that's a big impact not

only on myself, my family, also our community. Because

other streams in East Maui have been diverted and no water

for ponds, such as Dog Pond out in Kailua, and things like

that. Local people have to come to our stream.

Sunday, driving up the road to come out to the

highway, there must have been at least 15 cars on our stream


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43

1

all inundating one pond. And if it's not that, it's our

2

other little, tiny pond that get sometimes about ten cars.

3

And that's a tiny, little pond, tinier than the base that

4

you sit on. I mean, what is our stream going to do? By the

5

time I get the water we get at the end, it's very little and

6

it's warm. People above me want to grow in ag. They're

7

applying. People below me want to grow taro. They're

8

applying. Where's our water? Where is that?

9

And by not leaving water in the stream, by not

10

taking action now, what will we have for our children in the

11

future? You know, it's not just Upcountry people coming to

12

swim in our ponds, it's everyone; Central Maui, HC&S kids,

13

Water Supply kids, my kids, my family, everybody. All of

14

Maui needs these. You know, tourists when they come,

15

they're out there. You don't see them swimming in the cane

16

fields or going out there taking pictures of the cane

17

fields. They're in East Maui. They want to go see these

18

things. And we need to protect these for our children.

19

And as far as an ag consumer goes, even though I

20

don't get water from the County, I'm still a consumer, I'm

21

still ag. I don't make money off of it because I take care

22

of my kupuna and the children and my community around me. I

23

thank you for the time. Any questions?

24

CHAIR VICTORINO: Thank you, Ms. Scott.

25

Questions for the testifier to clarify her


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testimony? Mr. Medeiros?

2

COUNCILMEMBER MEDEIROS: Mahalo, Mr. Chairman.

3

And thank you for being here this morning. Aloha.

4

What -- what is the name of your stream?

5

MS. SCOTT: Honopou.

6

COUNCILMEMBER MEDEIROS: Honopou. Okay. I'm

7

looking at the list of the streams. I don't see Honopou.

8

MS. SCOTT: Honopou was -- was set in the first

9

eight in 2008.

10

COUNCILMEMBER MEDEIROS: Oh, okay. Okay.

11

MS. SCOTT: So I'm saying that you have this new

12

IIF standard that you want to meet, but yet my standards

13

haven't been met and I've been waiting two years.

14

COUNCILMEMBER MEDEIROS: Okay. So your stream name

15

is Honopou?

16

MS. SCOTT: Yes, it is.

17

COUNCILMEMBER MEDEIROS: Okay. Mahalo for your

18

testimony this morning.

19

Mahalo, Mr. Chairman.

20

CHAIR VICTORINO: Yes. Mr. Nishiki --

21

COUNCILMEMBER NISHIKI: Yeah, clarification.

22

CHAIR VICTORINO: Hang on, Mr. Nishiki. Before I

23

do, my policy is to allow our Members to ask first, Voting

24

Members if I may, please. Ms. Baisa had her hand up at the

25

same time. So if I may let Ms. Baisa, then I'll go ahead


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45

1

and recognize you.

2

Go ahead, Ms. Baisa.

3


4

But I would -- you know, I would defer. But it will be a

5

quick question.

6

CHAIR VICTORINO: Go ahead.

7

COUNCILMEMBER BAISA: Okay.

8

Thank you very much, Lyn, for being here. Just a

9

question on the little last statement you made at the end of

10

your testimony. And that was about this income requirement

11

that we're thinking of putting in this definition of ag

12

consumer. Are you saying also that you think that maybe not

13

having an income requirement is good? I -- I didn't quite

14

catch what you were saying.

15

MS. SCOTT: Yes.

16

COUNCILMEMBER BAISA: Okay. So you also feel that

17

there's other ways to determine ag besides income?

18

MS. SCOTT: Yes.

19

COUNCILMEMBER BAISA: Okay. Thank you.

20

CHAIR VICTORINO: Thank you, Ms. Baisa.

21

Mr. Nishiki?

22

COUNCILMEMBER NISHIKI: Yes.

23

You mentioned, for clarification, that -- that 1.2

24

million gallons that some agency set, and then you use the

25

word has not been met?


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46MS. SCOTT: Yes.

COUNCILMEMBER NISHIKI: Who is in control and

should be allowing that water to flow?

MS. SCOTT: You know, I did ask that question to

Ken Kawahara one day. I asked him who to complain to; CWRM,

NHLC that represents us, DAR, DLNR, or G-o-d? Actually, the

one that only really helped was God. So I don't really

know. As a matter of fact, I will be in a conference call

with the Commission today to see what has been done to

increase our water flow.

COUNCILMEMBER NISHIKI: Let me ask you this. Is

there a diversion and who controls? And if it is, then who

controls that diversion?

MS. SCOTT: The diversions are the Wailua Ditch

diversion, new Hamakua Ditch diversion. There was the

Lowrie Ditch diversion, but they have since closed a feeder

to that. And the lowest one that affects us would be the

Haiku Ditch diversion, which is right below the Hana

Highway.

COUNCILMEMBER NISHIKI: And who controls that? Is

there a human being that actually opens and shuts it?

MS. SCOTT: You could say that HC&S and East Maui

Irrigation would be able to close and open ditches. But if

there's -- all the water that we get that comes past that

point besides three pipes and what comes over the trough, if


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47you've ever seen that, everything else is filled in by

spring water. So if there's -- if you don't have any

streams flowing up in that area, our spring water will start

to deplete. And in the past months, our stream flow has

gone down.

I go out every day and I check the USGS visual

stream gauge, and I record that. And it's been going down

drastically every -- every week, every day.

COUNCILMEMBER NISHIKI: So this Kawahara gentleman

works for who, the State?

MS. SCOTT: The Commission on Resource --

Commission on Water Resource Management. He's the Deputy

Director.

COUNCILMEMBER NISHIKI: Okay. And he was the one

that set those limits? So you -- so you think that he is

the one who needs to answer to that question?

MS. SCOTT: No, the Commission set that.

COUNCILMEMBER NISHIKI: Right.

MS. SCOTT: They -- they -- the staff recommended

it, and they approved that. So it would be the Commission

and Laura Thielen, I guess.

COUNCILMEMBER NISHIKI: Okay. I guess the concern

is why is not this -- have you complained?

MS. SCOTT: Yes. As a matter of fact, like I said,

I will be having a conversation with them today.


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1

COUNCILMEMBER NISHIKI: And -- and finally --

2

MS. SCOTT: And we had a complaint, a formal

3

complaint also.

4

COUNCILMEMBER NISHIKI: And finally, you mentioned

5

about people coming and doing something around the water?

6

MS. SCOTT: We have --

7

COUNCILMEMBER NISHIKI: Who are these people and

8

what are they doing?

9

MS. SCOTT: Recreation. They come for swimming,

10

enjoying the ponds.

11

COUNCILMEMBER NISHIKI: Oh.

12

MS. SCOTT: We get tourists. We have local people,

13

families. We have a wide variety. We -- sometimes we have

14

Hike Maui. We have horseback riders coming through.

15

Because we're easily accessible, we're one gulch before Twin

16

Falls, and we do have the water, the local people want to

17

come there. They don't to have to deal with the tourists

18

out in Twin Falls, they don't want to have to drive father

19

out into the country where there's no water left in the

20

streams because you guys took it all.

21


22

MS. SCOTT: You're welcome.

23


24

Any other questions for the testifier? Yes,

25

Mr. Medeiros?


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49COUNCILMEMBER MEDEIROS: Mahalo, Mr. Chairman just

a follow-up.

Is there a stream monitor that's part of DLNR?

MS. SCOTT: I'm not sure who that is right now. It

was Atta Morris. Morris Atta.

COUNCILMEMBER MEDEIROS: I'm not sure of his name.

But I was aware that there was a stream monitor that

monitored -- or had the responsibility to monitor East Maui

streams.

MS. SCOTT: Yeah, we haven't seen him.

COUNCILMEMBER MEDEIROS: So you're not familiar

with that person?

MS. SCOTT: No, he was given other administrative

duties, and we have not seen him. And he resides in Oahu,

which is one of our issues. You know, we had Mr. Ornellas

here from the DLNR.

COUNCILMEMBER MEDEIROS: Right.

MS. SCOTT: But he was also saddled with more

administrative work. So --

COUNCILMEMBER MEDEIROS: Okay. Thank you for your

testimony.



Thank you, Ms. Scott.

MS. SCOTT: Thank you.


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50CHAIR VICTORINO: Next testifier, Rosemary Robbins.

And followed by Irene Bowie, who is the last testifier to

sign up. Anyone in the gallery who wishes to testify, I

would ask them to go to the lobby area and please sign up to

testify.

Ms. Robbins, go ahead.

MS. ROBBINS: Good morning.


MS. ROBBINS: I'm glad for the opportunity to be

here. Where to start? What I really want to know is where

do we finish this business on water so that we can get on to

doing more creative things with all of our natural

resources.

I would ask us to make sure that we be aware of

precedent, including the distribution fraction system that

has been going on for both the water down here and Upcountry

users. No wonder it's going to be contested. It's

unlawful. It kind of -- you know, my kids in school will

say, well, that's a no-brainer. Maybe from the mouths of

babes in there.

I would also make sure that we take care to

recognize that the children in school are not going to be

able to have as their first line of hearing is that it's

expensive to have contested hearings. That's our tax money

that's not going to other things that could be better spent.


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51

1

It's also expensive to have to comply with consent decrees.

2

We've got loads of precedent for that. It's not like what

3

if. We know that. So we need to be able to deal with that.

4

So if a Water Commission on the State level is

5

making decisions for us in our geography here and we don't

6

think those are necessarily the best decisions that are

7

being made, how can we make sure that we, as folks on Maui,

8

you folks who are elected and folks who are electing, get in

9

there and pitch for what's going to be good for us. So we

10

need to be aware about the precedence. We need to also be

11

aware about delaying in addressing -- well, addressing well

12

our water concerns.

13

Even though the County was supplied with Federal

14

monies of almost a half a million dollars in '04, which led

15

to the Upcountry Oversight and Advisory Committee. And Dain

16

Kane was one of the people that was involved in moving that

17

way back when. We're about to start FY 10/11. This is from

18

'04. We still do no have the Piiholo Water Treatment Plant

19

situation solved. We know it's contaminated. The reports

20

were very late in coming. So we need to not get into that

21

delay situation either. This was not Jeff Eng, but a

22

previous Water Director who, not only got that half million

23

dollars that the Oversight and Advisory Committee from the

24

EPA got for the County, the EPA also offered a Tribal Grant

25

that the previous Water Director just declined to take.


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52It's hard to explain that to people. Here's some

money to help you solve your problem. No thanks. It is a

problem. And we need to make sure that in view of the water

quality, quantity -- we're still talking about water here --

that Atrazine, et cetera, contaminated water in the wings in

volume is not a solution. So thank you much.

CHAIR VICTORINO: Thank you, Ms. Robbins.

Questions for the testifier for clarification

purposes?

Seeing none, thank you, Ms. Robbins.

MS. ROBBINS: You're welcome.

CHAIR VICTORINO: And our last testifier to sign up

is Ms. Irene Bowie. And she is the Executive Director for

Maui Tomorrow.

MS. BOWIE: Good morning, Chair and Council

Members. I'm Irene Bowie, Executive Director of Maui

Tomorrow Foundation. I'm here today to talk on the instream

flow standards and -- and like some of the previous

testifiers, to express my dismay at the Commission's ruling

on Na Wai Eha. It was pretty much beyond belief and

incredibly ironic on a day when half the mountain is

burning. I don't know what we need to do to -- to really

start to pay attention to the water crises that we're in and

to look at this in a more holistic manner. We have one

department working on certain things, another department on


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53

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certain things. And we've got to come together and we've

2

got to work on recharge. It's vital to restoring the

3

groundwater and it's all connected.

4

I'm -- I'm here to support the Board of Water

5

Supply's April 30th, 2010 letter to the Mayor and the

6

Council, their recommendations on Water Use Development.

7

And in particular, where they say, "We believe the" -- "the

8

maintenance and protection of watershed areas, restoration

9

of streams and wastewater recycling should be both a part of

10

independent components considered in all strategies and as

11

the top priority strategy in the plan. We recommend a

12

continued aggressive planning and implementation programs,

13

including adding a Department of Water Supply staff for leak

14

detection and repair."

15

I'd like to just remind everyone that 13 million

16

gallons a day of wastewater is put into the injection wells

17

in Maui County. We only reuse 20 percent of that.

18

Meanwhile, we have HC&S with 12 -- with 9 to 12 million

19

gallons a day being lost through a leaky ditch system. So

20

what's wrong with this? There's a lot of water here and

21

we're throwing it away. It's just -- it's mind boggling.

22

I'd also like to mention the -- the Board of Water

23

Supply's recommendation about small reservoirs. I think

24

that makes a lot of sense, and where they mention also

25

considering a Waihee Treatment Plant, along with Waiale.


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54Again, the R-1 Water -- right here, I have a report to the

Water Commission, a 2004 water report that talks about

reuse. And why we're not moving forward? I mean, we keep

hearing from the Department of Environmental Management that

we don't have the money. It seems like we need to find

that. We need to go forward with Federal grants, anybody

that could possibly help us find the money for this.

And then lastly, I would just say that we are on a

slippery slope with this water privatization. And where the

Board of Water Supply recommends the County Government's

potential use of eminent domain to take ownership and

stewardship of any and all water delivery systems throughout

Maui County. Instead, we have Wailuku Water Company that is

holding Na Wai Eha for future land and water development.

And water is a public trust. And we implore this Council to

do everything that they can to get us on the right track,

help us reuse the water, get the departments talking, help

us in this restoration of stream flow. Because the drought

continues, fires are becoming more and more commonplace.

And meanwhile, we're throwing water away. Thank you.

CHAIR VICTORINO: Thank you, Ms. Bowie.

Questions for the testifier to clarify her

testimony?

Seeing none, thank you, Ms. Bowie.

MS. BOWIE: Thank you.


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55CHAIR VICTORINO: Our last testifier is Ms. Gina

Flammer. And Ms. Flammer will be speaking on her behalf.

MS. FLAMMER: Hello. I'm Gina Flammer. I did get

to catch some of the earlier discussion, so I ran down so I

could share just a little bit of information.

I did hear some discussion about the income uses

for ag water rates. And I did want to share that some of

the other departments, when you look at real property tax

and the Planning Department's farm plans, they don't use

income as a definition of farming. They use proof of

farming requirements. And what they require is an

application that shows a site plan, shows photos and

descriptions of the actual farming. And what they do is

they have someone who can stay in their office, read an

application, and from that application, be able to determine

if there is farming going on. And if it's a case where you

can't really tell, they'll go out and do a site visit. But

they don't have to expend the resources to do that for every

single case. So I wanted to share that with you.

So if -- high income rates that would make it

easier, but it would also hurt a lot of the farmers. If

you're going to do no income rate or have a low income rate

of $1,000, you're probably going to want more proof in your

application and have it be more thorough. And that would

take a commitment on the Department of Water Supply to have


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56some more training. They'd have to redo their application.

They'd have to be able to go through it fairly quickly. But

it could be done. The other two departments do do that. So

that's all I wanted to say. Thank you.

CHAIR VICTORINO: Thank you, Ms. Flammer, for that

clarification. I do appreciate it.

Questions for the testifier?

Seeing none, thank you very much, Gina, for coming

down.

Ms. Flammer was the last testifier to sign up. I

will offer one more opportunity for anyone in the gallery

who has not testified and would like to testify, I will

allow that.

Seeing no rush to the podium, with no objections,

I'm going to ask the Committee to close public testimony at

this time.


CHAIR VICTORINO: Thank you very much.

...END OF PUBLIC TESTIMONY...

CHAIR VICTORINO: What we'll do, ladies and

gentlemen, we'll take a ten-minute break. We'll let the --

we'll get ready for the presentation, give you some time for

your personal needs, and then we'll get started with Mr. Oki

and Mr. Anthony as far as their presentation. And then

we'll have a Q and A after that. And then we'll go into the


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57

1

direct work of the Committee itself.

2

So this Committee will stand in recess until 10 --

3

I'm going to make it 10:30. I'm going to be really

4

generous, 10:30. ...(gavel)....

5

RECESS: 10:16 a.m.

6

RECONVENE: 10:32 a.m.

7

CHAIR VICTORINO: ...(gavel)... The meeting of the

8

Water Resources Committee will convene. I thank you for

9

that break. Now we are all set up for the presentation.

10

ITEM NO. 13: INSTREAM FLOW DIVERSIONS AND STANDARDS (C.C.

11

No. 09-317)

12

CHAIR VICTORINO: At this time, I would like to

13

turn it over to Mr. Stephen Anthony, the Director of the

14

USGS Pacific Islands Water Science Center; and Mr. Delwyn

15

Oki, a hydrologist from the USGS.

16

Gentlemen, go ahead.

17

MR. ANTHONY: Can you -- is that on? Okay. Good.

18

Chairman and Council Members, thank you for the

19

opportunity to speak to you today about this study that

20

we've been conducting over -- what has it been, a four-year

21

study? Just about a four-year study. And the Maui Water

22

Department; the County Council, through providing funds to

23

the Maui Office of Economic Development; as well as OHA; and

24

the Commission on Water Resource Management were all

25

contributors to this study.


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WR 6/15/10

58And I guess at this time, I'll turn it over to

Delwyn, who was the project chief for this effort. And

he'll share with you our findings and answer any questions

that you have.

CHAIR VICTORINO: And, Members, if it is all right

with you, we'd like to go through the presentation, hold

your questions until after the presentation is completed.

We'll lift the screen and then we'll turn it over. They

will be sitting right up front here, and you can present

your questions at that point.

Go ahead, Mr. Oki.

NOTE: COMPUTER-GENERATED PRESENTATION.

MR. OKI: Okay. Thank you, Mr. Chair.

Before I start, I just want to mention that we do

have a published report. We do have a published report

that's currently available online. We -- we also have

printed copies that will arrive, I think, next week. And so

we can make those available. We'll send you a box, if you

want.


MR. OKI: Okay. So let's begin here.

I'm pretty sure we're all aware of where the Na Wai

Eha Streams are. It include the four streams shown in

this -- in this figure. Waihee River is the largest of the

four in terms of stream flow, followed -- followed by Iao


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1

Stream. Waikapu is the only one of the four streams that

2

drains to the southern coast.

3

The -- the problems that's been going on regarding

4

the waters of Na Wai Eha is that there are a number of

5

competing beneficial uses for that water. And these uses

6

are not necessarily entirely compatible. Some of the uses

7

require flows to be in the stream. Some of the uses require

8

water to be removed from the stream.

9

This is a -- a brief outline of some of the

10

significant events that have happened in Na Wai Eha. For

11

over a century, about 16 million gallons or so has been

12

diverted from these four streams. The Commission on Water

13

Resource Management, back in December of 1988, first

14

established interim instream flow standards for these four

15

streams which, essentially, allowed status quo to continue.

16

Because of the competing beneficial uses for the

17

water, because of this competition, in December of 2007 a

18

contested hearing -- contested case hearing was initiated.

19

Back about a year -- a year or so ago in April 2009, the

20

hearings officer put out a proposed decision on the -- on

21

the contested case. And just last week, the State

22

Commission on Water Resource Management finalized the

23

decision. And I'll provide some information on that.

24

Okay. Each one of these streams -- and it's --

25

it's a little dark up here, in here. But each one of these


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streams has a number of yellow dots on there that represent

2

locations of current diversion intakes. Each one of the

3

streams has at least three of these diversions that

4

currently exist. The numbers shown next to some of the

5

yellow dots indicate some of the estimated diversion

6

capacities back a few years ago, a couple of years ago.

7

These diversion intakes typically are between elevations of

8

about 250 to 1100 feet.

9

Okay. I'm going to try to play this. This is a --

10

an example of one of the diversions. And this one happens

11

to be one of the intakes for the Waihee Ditch. These are

12

very efficiently engineered diversion intakes. You can see

13

that the stream basically disappears into this intake grate.

14

And as you look downstream, it basically has captured all of

15

the water. And there's my favorite part with the dog.

16

Okay. So that's the downstream reach.

17

Okay. So one -- one of the issues that's

18

associated with the diversion is that it does leave some of

19

the stream reaches downstream of the intakes dry. These are

20

a couple of photographs that we had from a mounted camera in

21

Iao Stream, bound near -- relatively close to the coast.

22

You can see on the left photograph is a condition when flow

23

was partially restored to the stream. And then on the right

24

is a photograph of a typically diverted condition when

25

the -- when the streambed is essentially dry. And what we


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found from our -- our photographic information -- we have

2

these cameras shooting every hour. We found that based on

3

the available photographs that we had, it was dry at least

4

two-thirds of the time in some of these streams.

5

Okay. So as I mentioned, the State Commission on

6

Water Resource Management, back in April of 2009, had a

7

proposed interim instream flow standards. And that was

8

finalized just last week. What I've plotted here on the

9

left -- left side or left map are the -- first, are the

10

initial proposed instream flow standards. And you can see

11

the numbers next to the triangles are locations where the

12

flow standards were set. And the numbers represent the flow

13

standards in million gallons per day. So, for instance, in

14

Waihee River near the coast, they set a -- they proposed an

15

instream flow standard of 10 million gallons per day.

16

When you go back to the -- the final decision now,

17

which was just announced last week, the -- the interim

18

instream flow standard was set at 6 million gallons per day.

19

The one thing that they did also do was in the initial

20

proposal, they had set interim instream flow standards for

21

both Iao Stream and Waikapu Stream. But in the final

22

decision, what they did was they essentially set it equal to

23

status quo. So the existing diversions were allowed to

24

continue in this instance. They did, however, set interim

25

instream flow standards for Waiehu Stream and Waihee River.


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62Although, the final interim instream flow standards are less

than what was initially proposed by the hearings officer in

2009.

Okay. So a brief description of our study was

about a three-and-a-half year cooperative study. As Steve

mentioned, it involved a number of Government agencies that

contributed to this study. The objective was to estimate

the effects of the existing diversions on a number of

things, including stream flow, groundwater recharge, habitat

for the native fauna, and also stream temperature, which I'm

not going to be talking about today. But I will be talking

about the first three items.

Ultimately, the purpose of our study was to

generate information that water managers could use to

establish the instream flow stream standard. I don't think

this information would necessarily all be used because the

decision came out just recently and a report hadn't been out

that long. There's probably some other reasons why it

wasn't used too, but I -- I won't really talk about that.

But I do want to say that and emphasize that our

study does not recommend an instream flow standard, and it

also doesn't do a number of other things. I mean, the list

is infinite, obviously. And I've listed here a few things.

So it's important to keep in mind that we don't make any

recommendation on an instream flow standard. We don't


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address the water requirements, for instance, for taro

2

cultivation or for sugar cane cultivation. We don't address

3

water requirements to maintain aesthetics or -- or

4

recreational areas either.

5

Okay. We -- we do have a couple of active stream

6

gauging stations on -- on both Iao Stream and Waihee River.

7

And the data that we collect at these two gauging stations

8

are actually accessible in -- in nearly real-time on the

9

Internet. And what these gauging stations do is record what

10

the stream flow is pretty much on a continuous basis. These

11

gauges were instrumental in our assessment of the effects of

12

diversions on the flow characteristics in these streams.

13

Back in the early part of the 1900s, we also

14

operated a couple of -- or a few gauging stations on Waiehu

15

Stream and Waikapu Stream. And I use those data to help me

16

also estimate some of the flow characteristics in those

17

streams. We also had to make some miscellaneous discharge

18

measurements at places where we don't have existing gauging

19

stations. And that was to kind of supplement our

20

information to allow us to estimate changes in stream flow

21

as you go downstream, for instance.

22

Okay. I need to briefly describe a couple of ways

23

we look at the data. And this -- what I plotted here is a

24

typical -- what we call a hydrograph. It's a plot of the

25

flow on the vertical scale and time on the horizontal scale.


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So this is from -- I believe it was from Waihee River. And

2

you can see how the flow goes up and down according to the

3

rainfall, essentially. But we can characterize the flow.

4

It's a little difficult to see here, but there's a

5

horizontal line going -- kind of a gentle horizontal line

6

going through this graph. And what this horizontal line

7

represents is the median flow.

8

Okay. So the median flow -- we are all kind of

9

familiar with what a median home cost is. They use that

10

because they don't want to include all the -- the extremely

11

expensive homes because that kind of biases or skews the --

12

what the typical home price would be. So you can do the

13

same thing with stream flow. You can describe a median

14

stream flow, which is essentially the value that kind of

15

demarcates the middle of the data. By that, I mean half of

16

the flows would be above that pink line, and the other half

17

of the flows would be below that pink line.

18

This is the median flow, which we otherwise call

19

the Q50. It's a little bit dim here. But the 50 represents

20

that it's equal or exceeded 50 percent of the time. Okay.

21

So we can define other types of flow characteristics in a

22

similar fashion. And what I've shown here is the Q90 flow.

23

So what the Q90 flow represents is the flow that's equal or

24

exceeded 90 percent of the time. So 90 percent of the --

25

the flow hydrograph, the blue line you see above is -- is


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65above that pink line, the Q90 line, and ten percent of the

values are below the Q90 line. So as you go from the Q50 to

the Q90, you're talking about decreasing the flow. Even

though this number, this percentile number goes up, you're

actually talking about a lower flow.

Okay. So let -- let's kind of put this in a little

bit of context here. On the right, I've plotted the final

interim instream flow standards that the Water Commission

recently established. So 10 million gallons per day for

Waihee River near one of the intakes, and 6 down near the

coast; 1.6 million gallons per day in north Waihee Stream;

.9 in south Waiehu Stream; and 1.3 million gallons per day

in Waiehu Stream, downstream of the confluence of the north

and south forks.

We can contrast that to what the median flows would

be in the absence of any diversion. So essentially, this

would be the natural flows that you would expect if there

were no diversions in place. As you can see, the -- the

interim instream flow standards are substantially less than

what the median flows in these streams are for both Waihee

River and Waiehu Stream. And I've also plotted here what

the median flows would be for Iao Stream and Waikapu Stream

for your reference. Okay. So that was the Q50.

This is the Q90. Again, the Q90 is a smaller flow

which represent the flow that's equal or exceeded 90 percent


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of the time. So only 10 percent of the time would you

2

expect the lower flow than the Q90. And again, on the

3

right, I've plotted the interim instream flow standards that

4

were established back a week ago. And you can contrast the

5

Q90 flows for Waihee River. They're still quite a bit

6

higher than the flow standards set by the Water Commission.

7

But if you go to Waiehu Stream, you can see that some of the

8

numbers that -- the flow standards are indeed higher than

9

the Q90 flow.

10

So for Waiehu Stream, the instream flow standards

11

for some of these locations are between the Q50 and the Q90.

12

They're between the median flow and the flow that I've shown

13

here, the Q90 flow. Okay. So that's to kind of put things

14

in context.

15

One of the aspects of our study, then -- the first

16

aspect of our study was to kind of characterize the effects

17

of diversions on stream flow characteristics, okay. So what

18

I've -- what I've put in a table here is listing the median,

19

or Q50 stream flows near the coast in each one of the

20

streams. First of all, in the middle column here, I've

21

listed the undiverted or natural flows that you would expect

22

in the absence of any diversions, 32 million gallons per day

23

near the coast in Waihee River. Waikapu Stream we estimate

24

that it's probably not -- you're not going to have flow

25

under median flow conditions.


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Now, in the extreme right column, I've -- I've

2

listed what the median flows at the same sites near the

3

coast would be under existing diverted conditions, provided

4

that the diversions do not return any water -- or none of

5

that diverted water is returned back to the stream. And in

6

some cases, water is returned.

7

For instance, in Waihee River, water -- some of the

8

taro growers do return some of the water back to the river.

9

And that actually results in some flow down at the coast.

10

But if no -- if none of that water was returned, we'd expect

11

to see a median flow of zero in Waihee River near the coast.

12

For Waiehu Stream, it would be less than 1.3 million gallons

13

per day. And both Iao and Waikapu on the existing diverted

14

conditions would be zero.

15

Okay. Now, that was just for kind of the existing

16

conditions. But we -- we also wanted to provide some

17

information to allow water managers to assess the

18

ramifications of what their decision is. So I provided this

19

one example -- an example here. There are two existing

20

diversions on -- main diversions on Waihee River. The

21

upstream diversions shown right here at the arrow is the

22

upstream diversion at -- and it's -- dumps into the Waihee

23

Ditch. And there's a downstream diversion shown here in

24

this photograph. This is for the Spreckels Ditch.

25

And then what I wanted to do was to look at how


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68these two upstream diversions would affect flow at the

coast, okay, for different -- for different configurations

of these diversions. Okay. So again, the -- the upstream

diversion is shown here. It's Waihee Ditch. And the

downstream diversion shown here is Spreckels Ditch.

And I've shown a plot here, which is a little bit confusing

to look at. But I'll try to explain it as best I can.

On this vertical access, what I plotted is the

capacity of the Spreckels Ditch shown here in this

photograph in million gallons per day. So if you increase

the capacity, you're going up on the graph. And the

horizontal access, I plotted the capacity of the upstream

diversion, which is the Waihee Ditch shown here in this

photograph. Okay. Now, let me give you an example of how

this graph might be used.

Okay. So the Commission on Water Resource

Management set an instream flow standard near the coast of 6

million gallons per day. Okay. So what these blue lines

represent, then, are lines of equal flow near the coast, or

equal median flow near the cost. Okay. So -- and there's

an infinite number of combinations that -- of diversion

capacities for the Waihee Ditch and Spreckels Ditch that you

could potentially have. And I've shown here one example.

And in this particular example, I've set the --

hypothetically set the capacity of the Waihee Ditch to 20


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million gallons per day, and the capacity of Spreckels Ditch

2

at 6 million gallons per day.

3

So if you use those two capacities, you come at

4

this point right here, which falls on this line, which is

5

the final interim instream flow standard for Waihee Ditch of

6

6 million gallons per day. So anywhere along this blue line

7

labeled 6, you will get 6 million gallons per day median

8

flow near the coast, or you're expected to get 6 million

9

gallons per day as your median flow near the coast. So any

10

number, any combination of its capacity for these two

11

ditches that fall along this line will give you 6 million

12

gallons per day as a median flow near the coast. Okay. So

13

this is just one example. You could shoot for a higher or

14

lower flow by following on one of these other kind of

15

parallel-looking lines.

16

Okay. So that -- that was an example if you want

17

to maintain a Q50 flow, the median flow. But there are

18

other possible things that -- flow characteristics that

19

might be important. For instance, the Q70 flow, which is

20

the flow that's equal or exceeded 70 percent of the time; or

21

the Q90 flow, again, this is a lower flow. It's a flow

22

that's equal to or exceeded 90 percent of the time.

23

So our report has a series of these graphs, one --

24

one for each stream that quantifies what types of flows you

25

might be expected to get at the coast given different


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70combinations or different capacities of the various

diversions on each stream. Okay. So that was the first

part of the study was to kind of characterize and quantify

the effects of -- of diversions on stream flow.

The second phase was to look at effects of

diversions on groundwater recharge, which is something that

should be of particular interest to the County Department of

Water Supply. What we did was we were notified by Wailuku

Water Company when they were going to be doing some ditch

maintenance activities, during which they would be

temporarily restoring water back to these streams. And we

used that as kind of an opportunity for us to measure how

the stream flow would behave as you go in a downstream

direction.

So what I've shown here is one particular example

of what we call a seepage run, which is a series of stream

flow measurements along the course of a stream. This one

happens to be -- and it's a little difficult to see. But

these measurements were made -- these four measurements here

were made along north Waiehu Stream. And you can see as you

go down stream toward the ocean, the stream flow is

decreasing. Okay. So that water is -- is seeping into the

stream bed and potentially contributing to the underlying

aquifer and contributing to the groundwater recharge.

Okay. Now, I'll just explain this very briefly.


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71The Waiehu Stream gets water from both the south fork and

the north forks of Waiehu. And so that's why you see that

in the north -- north Waiehu Stream, we had a flow of .94

million gallons per day up here. As you go downstream,

below the confluence of north and south Waiehu Streams, the

flow actually went up. And that's because water was

contributed from the south Waiehu Stream to this point.

But as you go further downstream along Waiehu Stream, you

can see it drops from 1.45 to about 1 million gallons per

day. So you're getting additional loss along this stream

reach of Waiehu Stream.

Okay. So what I -- what I did first was then to

try to characterize what the recharge would be if no

diversions were in place. Okay. So this would essentially

be the best-case scenario of what recharge you could get in

the absence of any diversions. Okay. So you can see the

numbers I've plotted above each stream represent the

recharge you could potentially get in million gallons per

day. And that recharge would generally be distributed along

these red lines that I've shown, which we identified as

being the reaches that water is -- seeps into the streambed.

Okay. So under natural conditions, you would -- you would

get, you know, more than 10 million gallons per day if you

add these three -- four numbers up.

Okay. So with the existing diversions in their


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existing configurations, what I did next, then, was to look

2

at how much of an effect these diversions are having on --

3

on the recharge. And this table lists the reduction in

4

recharge that you would be expected to see in each one of

5

the four Na Wai Eha streams, given the diversion intakes at

6

their existing configuration and also assuming that none of

7

the diverted water is returned back to the stream. Again,

8

this is kind of an extreme assumption because, in some

9

cases, water is indeed returned back to the stream and will

10

potentially contribute to recharge.

11

Another important thing to keep in mind is that the

12

water that is being diverted for off-stream use is likely

13

contributing to groundwater recharge in other areas. But

14

these other areas may not be necessarily the places where

15

you want the recharge to occur. So but it is important to

16

keep that in mind. It's not a total loss to the system. So

17

if you sum up these four recharge reductions, you get a

18

total of about 11.5 million gallons per day, a reduction in

19

recharge that we expect, given the conditions that I've

20

listed down here in this footnote.

21

Okay. So similar to the previous graph that I

22

showed, this plot, instead of showing the stream flow that

23

you would expect, shows the reduction in recharge that you

24

would expect for combinations of ditch capacities in Waihee

25

Ditch and Spreckels Ditch. So I'm using that same example


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73of Waihee River which has two main diversion intakes. And

instead of plotting like in the previous plot, showing you

what happened to the median flow near the coast, I plotted

here the recharge reduction that you would expect for any

combination of intake capacities in Waihee and Spreckels

ditches.

Okay. So applying that same example that I used

previously, if you have an intake capacity of 20 million

gallons per day in Waihee Ditch and about 6 for Spreckels

Ditch, you come across to this point, which lies on this

line. And that would indicate for these two intake

capacities, you'd get about a .6 million gallon per day

reduction in groundwater recharge from Waihee River. Okay.

So again, we produced plots of this nature for each one of

the streams so that managers could evaluate, you know,

what -- what -- what different hypothetical intakes might do

to the groundwater recharge.

Okay. And the third aspect that I want to talk

about today is the effects of diversions on habitat. And

this photograph actually has about a dozen native fish

shown. And it's difficult to see them in that last

photograph -- in the last photograph, so I've kind of

outlined them here. These are the native 'o'opu for which

we're trying to estimate the effects of the existing

diversions on their habitat. And I'm not going to talk too


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much about some of the instream needs of these -- of these

2

native species. We -- I'm just going to concentrate this

3

part of the talk on how the diversions are affecting the

4

physical habitat for the native species.

5

Okay. So we measured habitat at all of these red

6

dots on the four streams, total of 13 sites. And we went

7

back to each one of these sites anywhere from two to five

8

times to -- to collect our habitat measurements. And our

9

habitat measurements, we essentially included measurements

10

of the water velocity, the water depth and the substrate

11 material at the point where we were -- where we were

12

measuring. And I'm not going to be able to fully describe

13

the method that we used to translate our measurements into

14

an estimate of the -- the suitable habitat for these native

15

species. I'm just going to kind of jump to the -- the

16

result here.

17

This plot shows the response of the habitat for

18

the -- these species, the response to stream flow. Okay.

19

So on the vertical scale here, I've plotted the habitat.

20

And let's, for the moment, ignore the -- the units of it.

21

But it's -- on the vertical scale is a measure of the

22

habitat, and the habitat increases as you go up. On the

23

horizontal scale, I've plotted the stream flow, or

24

discharge. And the discharge goes up as you go to the

25

right.


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75Okay. So this is a graph in which we essentially

combined all of our data for all of the native species that

we looked at, which included the native 'o'opu, 'opae, and

also hihiwai. And so it's kind of a summary graph or a

generalized relation that we came up with to describe the

relation between habitat and flow.

Okay. The important thing here is that the flows

are -- are actually normalized. And by that, I mean

they're -- they're made comparable amongst the -- the

various streams. Some of the streams are bigger than

others, they have more flow. And so in order to make them

comparable, you have to kind of divide them by what the --

by some factor to kind of normalize them all onto this --

onto a common scale. And what I chose to do here was to

normalize the discharge in terms of the natural Q70

discharge. Okay. And that was not a totally arbitrary

choice because the natural Q70 discharge is kind of an

indicator of a typical base flow conditions, conditions

where you -- kind of dry weather conditions where the flow

that you see in the stream is mainly coming from groundwater

discharge.

So what I plotted, then, would be a discharge kind

of normalized by what you would expect on a typical base

flow conditions. The habitat was -- was normalized

according to the habitat at that same flow. Okay. So it's


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76kind of a percentage. So if I'm at 100 percent, that means

I'm at the Q70 flow. I'm at 100 percent of my typical base

flow condition, and I'm also at 100 percent of my habitat at

that flow condition. Okay. So I've also plotted here a

couple of examples.

Okay. So for Waihee River, the State has

established an interim instream flow standard of 6 million

gallons per day. That is actually 22 percent of the natural

Q70 discharge. Okay. So that point we'll plot here. That

6 million gallons per day is equivalent to 22 percent of

this natural Q70 discharge in Waihee River. If you look at

that, if you come up here to the graph, you'll see that what

you're left with then is about 70 percent of the habitat

that you would expect under that -- a typical base flow

condition.

Okay. Waiehu Stream is doing a little better in

terms of habitat. The proposed -- or the final interim

instream flow standard for that stream was 1.3 million

gallons per day. And if you do the math, it comes out to

about 72 percent of what the natural Q70, or typical base

flow condition would be. If you come up to where it hits

the graph and go horizontally, you'll see that -- what that

leaves in the stream is about 92 percent, 92 percent of the

habitat you would expect under typical base flow conditions.

Okay. So that -- that essentially in a nutshell is


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77the results from our study. There are actually quite a bit

more -- there's quite a bit more information in the final

report. But, obviously, I can't spend all day talking about

that. So I kind of boiled it down here to some bullet

points. In terms of stream flow, the existing diversions

are indeed capable of reducing the flow to zero near the

coast. The interim instream flow standard -- it actually

should be IIFS -- established by the Commission on Water

Resource Management allows this condition to continue in Iao

Stream, but doesn't allow the condition to occur in either

Waihee River or Waiehu Stream.

Now, in terms of groundwater recharge, the existing

diversions are capable of reducing recharge by about 11.5

million gallons per day. The interim instream flow

standards established by the Commission of Washing -- Water

Resource Management will likely result in more than 9

million gallons per day reduction.

In terms of habitat, existing diversions are

capable of reducing to habitat -- of reducing habitat to

zero in some reaches in all the streams. The interim

instream flow standard will allow this condition to continue

in Iao Stream, but it will maintain about 70 percent of your

typical base flow habitat in Waihee River and more like 92

percent in Waiehu Stream near the coast.

One of the things that we do have in our report are


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those curves that I showed you which we developed to

2

estimate the effects of the diversions on stream flow,

3

recharge reduction, and habitat for the native species. And

4

with that, I'll close.

5

CHAIR VICTORINO: Thank you, Mr. Oki.

6

What I will do at this time is take a quick

7

two-minute recess. I'd ask all the Members not to leave

8

their -- the Chamber. We'll raise the screen. And if

9

Mr. Oki and Mr. Anthony will come up front, and I'll open it

10

up to Q and A. This meeting will stand in recess for two

11

minutes. ...(gavel)...

12

RECESS: 11:05 a.m.

13

RECONVENE: 11:07 a.m.

14

CHAIR VICTORINO: The June 15th Water Resource

15

Committee meeting will reconvene. First of all, I'd like to

16

thank you, Mr. Oki and Mr. Anthony, for being here for that

17

presentation. I think Delwyn and I had met in Oahu at the

18

HWWA conference. And I asked him at that time, and he was

19

very willing to come up to give us a presentation. I thank

20

you very, very much.

21

At this time, what I -- the Chair would like to do

22

it this way. I would like to go for the next 20 minutes, or

23

to 11:30. And I'll cut it off at that point with Q and A

24

with the two presenters. And if you have any further

25

questions, then please put it in writing and we'll ascertain


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79the answers for you at that time. Then we'll go and try to

finish up our last agenda item, which is the ag consumer

part. Okay.

So at this time I would like -- and I'll do it this

way. I'll start with Mr. Molina and just work our way down.

And if we could keep it to maybe one or two questions, just

to give everybody a fair chance, I would appreciate it. Go

ahead, Mr. Molina, and we'll work our way right down the

line.

COUNCILMEMBER MOLINA: Thank you very much,

Mr. Chairman.

And thank you, gentlemen, for that very excellent

presentation. I felt like I was taking a college course

here. But it was very informative, to say the least. In

terms of your formula for coming up with your numbers, how

was rainfall or lack therefore calculated into -- into all

of this? If you could put it in laymen's terms. I mean,

I'm not, you know, an expert in the field like -- like --

like you folks are.

MR. OKI: (Inaudible).

CHAIR VICTORINO: Okay. Hang on a second.

Microphone. We're missing the microphone again. One

moment, please, because we need to record this.

MS. WILLENBRINK: I apologize, Chair.

CHAIR VICTORINO: That's okay.


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MS. WILLENBRINK: I may need a little bit of help.

2

CHAIR VICTORINO: Okay. Mr. Kushi, do you think

3

that microphone could move over for now while we try to get

4

technical corrections? I don't think so. Yeah, why don't

5

you -- yeah, Mr. Oki, go over a little while for right now

6

we -- oh, okay.

7

Okay. Okay. Mr. Oki, now you can slide back.

8

Thank you. Sorry about that, making it inconvenient for

9

you. I apologize. My fault. Go ahead, Mr. Oki.

10

MR. OKI: Okay. We based our analyses on stream

11

flow data. So we use -- we use data from our stream gauging

12

stations, both active and historical, which are -- they were

13

run back in -- 100 years ago or so.

14

We also used data that we collected as part of this

15

study, which we call miscellaneous discharge measurements.

16

We went to the stream at selected locations to help us

17

establish what kinds of -- of stream distribution we'd get,

18

basically; what would -- what -- what the flow would be

19

along the length of the stream. We did not directly factor

20

in rainfall into our analyses. It was based -- the stream

21

flow is basically an integrator of that rainfall. It --

22

it's -- obviously, it depended on rainfall. And so it kind

23

of integrates what's going on in that -- in the watershed.

24

COUNCILMEMBER MOLINA: Uh-huh, okay.

25

MR. OKI: So we didn't directly use rainfall. We


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81used stream flow data.

COUNCILMEMBER MOLINA: Okay. All right, thank you.

And it's my last -- second and final question,

Chair.

I guess one of your last slides on page 15 on the

document you handed to us on the effects of diversions on --

on the habitat, it mentions 13 sites, 10 cross-sections per

site. I mean, when you speak of habitat, you're talking

about the -- I guess, the animal and plant life. I guess in

a nutshell, so in your estimations -- I don't know if you

said it in your presentation. But just a quick synopsis. I

mean, is this having -- the diversions having a real major

impact on fish and flora and fauna of these stream sites?

Are these 13 sites in --

MR. OKI: Well, we -- we select -- those sites were

selected because they had water. We -- we couldn't make

habitat measurements in a dry stream bed. So we -- we

particularly selected those sites because they had water.

Now, in terms of -- in general, does the -- do the

diversions affect the habitat? In some locations --

obviously, if you have a dry stream bed, it's affecting your

habitat. What the effect of -- of returning water back to

the stream on abundance of the -- of native species, we did

not try to quantify that at all. We just looked at physical

habitat, the effects of the different flow rates on physical


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82habitat for these species.

COUNCILMEMBER MOLINA: Okay. So that would, I

guess, be left to other scientists to make that type of

assessment?

MR. OKI: Right.

COUNCILMEMBER MOLINA: Okay. All right. Thank

you.

Thank you, Chairman.

CHAIR VICTORINO: Thank you, Mr. Molina.

Ms. Baisa?

COUNCILMEMBER BAISA: Yes, thank you, Chair.

And thank you, gentlemen, for an incredible

presentation. Trying to get the chronology straight in my

mind, this work that you presented to us today, was this

presented to CWRM prior to them making their recent

decisions?

MR. OKI: Not to the Commissioners. We had --

because the -- the Commission on Water Resource Management

was a cooperator on the project, --

COUNCILMEMBER BAISA: Right.

MR. OKI: -- we did brief them on the results of

the study. I think it was back in October of 2009. So they

were aware of the study. They're aware that the report was

imminent, but we did not present it to the Commissioners

themselves. I believe that -- and I didn't talk about it up


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there. But I believe that the decision that they came up

2

with was based on what was on the record. And this was not

3

on the record that they could use, I believe.

4

COUNCILMEMBER BAISA: That's kind of sad.

5

MR. OKI: Well --

6

COUNCILMEMBER BAISA: Because it appears to be very

7

relevant information.

8

MR. OKI: Oh, absolutely. But -- but the -- the

9

approach they're adopting is kind of an adaptive management

10

approach so that they set these interim instream flow

11

standards. If it's found, for whatever reason, that they're

12

not working, they can always revise it. And at that point,

13

they can use the information, you know, from our study.

14

COUNCILMEMBER BAISA: Okay. Thank you very much.

15


16

Mr. Kaho'ohalahala?

17

COUNCILMEMBER KAHO'OHALAHALA: Thank you, Chair.

18

So in looking at your summary, then, from all of

19

the information you provided us. Then basically in the

20

stream flow, you said if we continue to -- the existing

21

diversions, then there's more than likely chance that there

22

will be no -- the coastal area will be zero, then, no water

23

will -- is that your -- a conclusion, then, in your summary?

24

MR. OKI: For -- for -- for some of the time.

25

For -- for like Iao Stream, now, clearly, if you have a big


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storm, it's going to flow all the way to the coast.

2

COUNCILMEMBER KAHO'OHALAHALA: Right. Right.

3

MR. OKI: But under -- under typical dry weather

4

conditions, we're finding that near the coast, Iao Stream

5

was dry, you know, more than half the time.

6

COUNCILMEMBER KAHO'OHALAHALA: And that's with the

7

status quo?

8

MR. OKI: Yes.

9

COUNCILMEMBER KAHO'OHALAHALA: So at the -- at the

10

current decision by the Commission, then, it would mean that

11

there would be dry periods of time -- or most of the time,

12

would be dry, then?

13

MR. OKI: More than half the time.

14

COUNCILMEMBER KAHO'OHALAHALA: More than half the

15

time would be dry. And then when you look at the recharge,

16

just so I understand this, your conclusion is that the

17

diversions are going to reduce recharge by 11.5 million

18

gallons per day. And then you said, then, with the instream

19

flow standards, that it may result in a 9 point -- so you're

20

saying there would be a reduction of 2 million, then?

21

MR. OKI: Yes, because the 11.5 was derived based

22

on diversions in there, kind of existing configurations. So

23

they'd be -- you're taking essentially all of the dry

24

weather flow that they could take.

25

Now, with the instream flow standard recently set


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85by the Water Commission, they are -- it's status quo for

Waikapu and Iao Stream. But for the other two streams,

for -- for Waiehu Stream and Waihee River, they are putting

water back. And so what that does is it enhances the

groundwater recharge.

COUNCILMEMBER KAHO'OHALAHALA: Okay. So

essentially, then, the conclusion is that the diversions in

fact are going to be taking away quite an amount of, sum of

water in terms of recharge, then?

MR. OKI: Potentially, yes.

COUNCILMEMBER KAHO'OHALAHALA: Eleven -- in this

case, 11.5 million per day?

MR. OKI: That would be for -- for sort of existing

conditions. And again, there's some provisos to that; none

of the water is put back to the stream, diversions in their

existing configurations. So those are the two main

provisos.

COUNCILMEMBER KAHO'OHALAHALA: So the -- the claim

that was presented by the testifier, then, that to have the

instream flow for the taro production would in fact help the

recharge? That's a -- that's a --

MR. OKI: Potentially, yes. I mean, if you put all

the water back in the stream, some of that water, you

know --

COUNCILMEMBER KAHO'OHALAHALA: It will go back?


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86MR. OKI: It will go back down to the aquifer. Not

all of it, but some of it will go back. If you have a dry

stream, clearly you don't have that opportunity.

COUNCILMEMBER KAHO'OHALAHALA: Okay. So I just

want to kind of parallel their -- their positions that the

instream flow is a benefit to the aquifer itself in terms of

the recharge, yeah?

MR. OKI: If you enhance the flow in the stream by

putting water back, that's going to enhance the opportunity

for recharge.

COUNCILMEMBER KAHO'OHALAHALA: Okay. And then just

my last question has to do with the -- you're saying in the

existing diversions, then, that the -- the chance of habitat

restoration or continuation is zero, then, for all streams?

MR. OKI: No. What I -- what I said was that in

each one of the streams, for the -- in the existing

situation, there are going to be some reaches that are dry.

And so that -- they will have zero habitat. In some cases,

the reaches are longer than others. In some cases, it -- it

may be dry even under natural conditions. But for -- for

instance, for -- if you take Iao Stream, there's a fairly

long reach that is dry because of the existing diversions.

If no water were diverted, that stream would be perennial.

So the diversions, yeah, are -- if you create a dry stream,

you clearly eliminate all the habitat within reach.


WR 6/15/10

87COUNCILMEMBER KAHO'OHALAHALA: Okay.

Okay. Thank you.


Mr. Medeiros?

COUNCILMEMBER MEDEIROS: Mahalo, Mr. Chairman.

And thank you for your presentation.

MR. OKI: Thank you.

COUNCILMEMBER MEDEIROS: Very informative.

Continuing on the same lines, I'm not sure how far your

study or your research that this project went to. But did

it include anything having to do with the estuaries and down

to the ocean?

MR. OKI: No.

COUNCILMEMBER MEDEIROS: No.

MR. OKI: And that was one of the things I listed

in that slide is we didn't look in the -- in the nearshore

environment.

COUNCILMEMBER MEDEIROS: Okay. Because -- and --

and -- is that the kind of work you would do, though, that

would include the estuaries and the nearshore ocean waters

and reefs?

MR. OKI: That's -- I mean, we definitely would be

interested in that because it's an issue that's been brought

up not only here, but also on Molokai.

COUNCILMEMBER MEDEIROS: Uh-huh.

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88MR. OKI: So it's something that needs to be

addressed. Whether or not we'd be doing that, I'm not sure.

Do you want to say anything?

MR. ANTHONY: That might be work that USGS could

assist with, but not likely with some of the expertise we

currently have in our Honolulu office. It's something that

we would reach out to other entities within USGS who would

have appropriate expertise to -- to help with that.

COUNCILMEMBER MEDEIROS: I see.

MR. ANTHONY: And, of course, there are others,

perhaps at the University of Hawaii or Division of Aquatic

Resources, others within the State that would have that

expertise.

COUNCILMEMBER MEDEIROS: Uh-huh. I -- I'm just

trying to see how do you tie in the entire ecosystem with

the -- the streams that go dry or get a little bit more

flows on different weather conditions, and so forth.

Because I know another time, information was presented --

and it was given to us that there was observations of 'o'opu

now back in the streams. But like Iao, above the

diversions, they can exist. But that's a long ways from the

ocean to the diversions for them to go on a dry stream bed.

So that's my -- my interest is how do you connect the

ecosystem again once you dry it up? Any -- any comments to

that?


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MR. ANTHONY: No, other than to support your

2

interest in viewing things from a -- an ecosystem

3

perspective. And that's something that scientists bring

4

expertise in particular aspects and need to work together

5

with their counterparts who have the expertise to provide a

6

more holistic understanding.

7

COUNCILMEMBER MEDEIROS: Uh-huh.

8

MR. ANTHONY: And the challenge often is that the

9

funds available to address questions often aren't sufficient

10

to support a more complete understanding. And often when

11

looking at results from any one study, one is often left

12

with more questions because that one study couldn't address

13

all of the issues.

14

COUNCILMEMBER MEDEIROS: Okay. And just -- just

15

maybe finally, my observations of Iao Stream in recent

16

months, at times there was a heavy flow, but there wasn't

17

rainfall down by the coastal area. There were clouds in the

18

mountains. What effect did that heavy flow for several

19

days? I mean, it was like a week of heavy flow -- not heavy

20

flow, but flow going on where we -- before, there was none.

21

MR. OKI: Yeah. Well, occasionally, both Wailuku

22

Water and HC&S will do maintenance on their ditches. And

23

during those periods, sometimes they flow water back into

24

the stream. And so I'm not sure --

25

COUNCILMEMBER MEDEIROS: Okay.


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90MR. OKI: I mean, I don't know what exactly was

causing that flow that you saw, but that's one possibility.

COUNCILMEMBER MEDEIROS: Okay. Thank you very much

for the information.



Mr. Nishiki?

COUNCILMEMBER NISHIKI: Yeah. USGS is an

organization that does work independently for the County of

Maui?

MR. OKI: We're -- we're a Federal agency that is

not a management agency. We -- we -- we work for the

people, essentially. We provide data and information that

can be used by the County or by the State.

COUNCILMEMBER NISHIKI: And you are in no way

tainted by big business, people that divert, or even our

taro farmers?

MR. OKI: Well, one -- one of the things that we

pride ourselves on is being an unbiased scientific

organization. We have -- you know, we have no dog in the

fight.

COUNCILMEMBER NISHIKI: You receive no money from

the big corporations or anything else?

MR. OKI: Well, we -- we receive our money from --

typically, from other Government organizations.


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COUNCILMEMBER NISHIKI: Okay. And -- and -- and I

2

want to read, Mr. Chairman, from the executive summary,

3

which says that "This report presents results of a study to

4

characterize the effects of existing surface water,

5

diversions of stream flow, groundwater recharge, physical

6

habitat for native stream fauna, and water temperature in

7

Waihee River, Waiehu" --

8

CHAIR VICTORINO: Mr. Nishiki, I'm going to stop

9

you right here. Because I want questions to be asked -- I'm

10

not -- you know, if you want to present that later, that's

11

fine. But I have other Members that would like to ask

12

questions. And I -- I understand you're zealous to explain

13

that. If that can be brought up at a later point. I would

14

like the Members to be able to ask questions. So I'm going

15

to ask you unless you have a question, I'd like to move on.

16

COUNCILMEMBER NISHIKI: Oh, I do have a question.

17

CHAIR VICTORINO: Well, ask the question,

18

Mr. Nishiki, specifically without reading all the rest of

19

the stuff. Thank you, sir.

20

COUNCILMEMBER NISHIKI: Yeah. You know what,

21

Mr. Chairman?

22

CHAIR VICTORINO: Yes, sir.

23

COUNCILMEMBER NISHIKI: I just -- I don't want

24

someone to interrupt me when I've got a question and I need

25

to present to them what this states so that they can justify


what my questions is.

CHAIR VICTORINO: Ask the question, Mr. Nishiki.

COUNCILMEMBER NISHIKI: And I don't like your

bullying tactic, but I will ask the question now.

CHAIR VICTORINO: Please ask the question. Thank

you.

COUNCILMEMBER NISHIKI: And I call it a bullying

tactic.

The question is this: In the -- and help the

general public to understand this. You're saying that 11.5

million gallons are lost to recharge. In other words, the

recharge. What, in effect, does this do to the ability of

the aquifer, I guess the question is, that is -- that we get

our water from? What does this recharge loss do to the

County's ability and the condition of the aquifer, I guess,

where we get water from? What occurs there?

MR. OKI: Well, we actually have a study that

addresses that, that was published about a year and a half

ago maybe that specifically addressed the aquifer. We

developed the numerical groundwater model. That was done in

cooperation with the County Department of Water Supply. And

in one of those scenarios, we looked at what that recharge

contribution from the streams would do to the aquifer.

COUNCILMEMBER NISHIKI: And what -- what does the

scientific info -- information show when the -- this much

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millions of gallons are lost due to diversion?

2

MR. OKI: I can't specifically say what it did.

3

But what you would expect in general is that if you put more

4

water into the system, you would expect an increase in your

5

groundwater level and also likely an improvement in the

6

quality of the water. You could probably get a little bit

7

of freshening. But I don't have a -- I don't have the

8

specific figures in front of me. But that was quantified as

9

one of the scenarios in a previously published report.

10

COUNCILMEMBER NISHIKI: Okay. So -- so then you

11

would say that in the -- in the area where the decision to

12

give no stream flow in Iao and Waikapu does two things: In

13

those areas, recharge may not happen; and two, in those

14

areas, stream habitat could be totally eliminated?

15

MR. OKI: It would -- recharge -- the opportunity

16

for recharge would be diminished, clearly. You would get

17

recharge under high-flow conditions, but that doesn't happen

18

all the time.

19

COUNCILMEMBER NISHIKI: Yeah.

20

MR. OKI: Same thing for habitat. Under a typical

21

low-flow conditions, both Waikapu and Iao may experience dry

22

stream beds, which clearly means zero habitat.

23

COUNCILMEMBER NISHIKI: In other words, when you

24

say zero habitat, things will die?

25

MR. OKI: Yeah. You have no water.


aquifer? Any idea?

MR. OKI:

along that stream.

It -- it really depends on where you are

It depends on the elevation of the

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94COUNCILMEMBER NISHIKI: Anyway, I'll allow other

questions. Thank you, Mr. Chairman.

CHAIR VICTORINO: Thank you, Mr. Nishiki.

Mr. Pontanilla?

VICE-CHAIR PONTANILLA: Thank you. I wasn't going

to ask a question. But, you know, Mr. Nishiki brought up a

good point where water is now going to be put back into the

stream. How long does it take to recharge an aquifer? In

other words, when you look at Waihee -- Waihee Stream,

they're going to put back water into that stream. How long

does it take for the stream water to reach -- to reach the

streambed relative to the water level in the aquifer. If

it -- if it has to travel -- if the water has to travel

vertically down further, it's clearly going to take longer.

Whereas, as you get closer to the coast, that distance

diminishes, that unsaturated zone between the stream bed and

the water table can be a matter of feet.

We have some data -- and this is not exactly

analogous. But we do have some data from Kona in which it

shows that when a big storm came through, we saw a fairly

immediate response in groundwater level. Now, it's a

slightly different situation because there the rocks are


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extremely permeable. You're talking about bare lava. So in

2

these streams, you're talking about the water having to

3

travel through some lower permeability sedimentary deposits.

4

So the response will be delayed. But as you get closer to

5

the coast where that distance between the stream and the

6

groundwater is small, you could see a fairly -- a quick

7

response. I don't -- I can't quantify that, but --

8

VICE-CHAIR PONTANILLA: Okay. Thank you. And you

9

know, in Iao Stream, they had hardened the -- I guess, the

10

stream bed. What effect does it have in regards to the

11

stream itself? You know, that one particular section, if

12

water was, you know, put back into that stream, you know,

13

there -- there wouldn't be any recharge in that one

14

particular area. But as -- you know, what does hardening of

15

the streambed does?

16

MR. OKI: Well, like you say, it will -- it will

17

reduce the opportunity for groundwater recharge. But also,

18

when you have a concrete channel as opposed to a natural

19

streambed, the habitat is not as desirable for the native

20

fauna. They don't have as many places to hide out.

21

There are ways of trying to improve that condition.

22

In fact, in Iao, you see they -- they kind of cemented in

23

some cobbles to try to provide some artificial habitat.

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It's not the greatest solution. But putting water back into

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these concrete sections also provides an opportunity for the


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96native species to kind of migrate upstream. Without water,

they can't migrate or negotiate that concrete section. But

if water is there, they -- they have the potential to travel

upstream.

VICE-CHAIR PONTANILLA: Thank you.


CHAIR VICTORINO: Yeah. Thank you.

Mr. Mateo?

COUNCILMEMBER MATEO: Yeah, Mr. Chair.

Thank you very much. And gentlemen, you know,

thank you for this real comprehensive report. It was, at

times, I guess if you didn't have an understanding of

geology itself, it became quite technical.

However, on page 5 of your report, the study is

quite -- quite thorough, I think, in stream flow,

groundwater recharge, habitat for native fauna. But yet,

it's the second part, the lower part of the page, that is

kind of disturbing to me where you probably are the only

entity that has a -- a most recent study of the streams, and

yet your study does touch on flow -- on stream flow, it also

touches on recharge, and it touches on the animal life in --

in the streams. And yet, your report does not recommend

stream flow, does not respond to native species, does not --

will not address the additional water required for taro

growers, et cetera. And yet, that is such a vital component


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97in us understanding the health of the stream.

Is there a reason why USGS will not make these

recommendations?

MR. OKI: You want that one?

Yeah. I mean, as a general rule, we do not make

recommendations. It's not our role as an agency. We

provide the information to enable managers to make these

decisions.

COUNCILMEMBER MATEO: Okay. But US --

MR. OKI: Go ahead.

COUNCILMEMBER MATEO: But USGS, you know, got

involved with the study because you understand the urgency

in the degradation of the four streams?

MR. OKI: Well, we wanted to provide information

that would enable the Water Commission to make kind of a

sound, you know, judgment.

COUNCILMEMBER MATEO: So USGS has confidence in the

Water Commission?

ALL: ...(chuckle)...

MR. ANTHONY: Maybe if I help in this way, which is

to say that these decisions are left to the Water Commission

because it is the Water Code that empowers them to make

those decisions. And USGS is providing information that

helps people facing these decisions to understand the

effects of the decisions that they'll be making to --


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essentially, they're faced with how are they going to

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balance those competing beneficial uses.

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It is not appropriate for USGS to insert itself in

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that decision-making process. We're not empowered to make

5

those decisions. And those decisions are really value

6

judgments that the people who are empowered to make need to

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make. And we are a scientific agency that is -- that is to

8

provide information, but not to pass judgment on others and

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their values and their decisions that they make. And we

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really leave it up to -- to those that have that

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responsibility to carry out that work.

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COUNCILMEMBER MATEO: Thank you very much. Good

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cover. Thank you very much.

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Mr. Chairman, thank you.

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CHAIR VICTORINO: Thank you. And, you know, I want

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to, first of all, thank you, Mr. Anthony. That was a --

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you're very good at soft-shoe -- you can tap around

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anything. I want to hire this guy.

19

But more importantly, I think I want to say thank

20

you for both of you gentlemen being up here for that

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presentation. I will offer the Members, if you have any

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further questions, please get that in writing, and that we

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can forward on any other questions you may have about the

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study. There are books available on this study. And that's

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the one you have there. Right? Okay. And I will make sure


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everyone gets a copy of that study so that you have that for

2

your own perusal when you have some time. I mean, we all

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have plenty of time.

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COUNCILMEMBER MEDEIROS: Mr. Chair?

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CHAIR VICTORINO: Yes.

6

COUNCILMEMBER MEDEIROS: Just a yes or no question,

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not having to do with this --

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CHAIR VICTORINO: No, I'm not going to allow any

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more questions because we need to move on. So at this

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point, I'm -- I'm going to say no. And I made it 11:30, and

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it's 11:35. And we need a few minutes to finish the other

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one, if at all possible.

13

So gentlemen, if you don't mind, I will excuse you.

14

Thank you very, very much. And I do appreciate it. And the

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Committee Members, thank you very, very much.

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Okay. Gentlemen and ladies, let us move on to our

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second item, which is WR-1, apostrophe 1 [sic]. This is --

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oh, I'm sorry. Excuse me. Before I go on, I have to defer

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the first item.

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So if there's no objection, I'd like to defer the

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first item, Item WR-13?

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CHAIR VICTORINO: Thank you very much.

24

ACTION: DEFER pending further discussion.

25

ITEM NO. 1(1): WATER SUPPLY RULES (DEFINITION OF


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100AGRICULTURAL CONSUMER)(C.C. Nos. 05-46,

06-228, and C.R. No. 10-43)

CHAIR VICTORINO: So the second item, which was a

deferred item, is the Water Supply Rules (Definition of an

Agricultural Consumer).

We are in receipt of a correspondence dated

June 8, 2010, from the Department of Corporation Counsel,

transmitting a revised bill entitled A Bill For an Ordinance

Amending Article 1, Title 14, Maui County Code, Relating to

the Agricultural Consumer.

To make certain -- please make certain that

everyone has the most revised revision, or the most current

revision. That should be dated June 8th, 2010, from the

Corporation Counsel, Mr. Edward S. Kushi. Everyone have

that? I just want to make sure.

Okay. Now, this was recommitted back in

March 19th, 2010, from a Council Meeting, regarding the

concerns from the public. The new bill has incorporated

many suggestions after meeting with organization and

individuals within the community. I've tried to incorporate

many of the discussions we've had from many of the different

groups in all aspects. And as you can see, the bill that

has come forward is really a compilation of all the various

suggestions.

So at this time, I will also draw your attention to


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101a letter that was sent to you from the Department, dated

June 14th, 2010. And this is from Mr. Jeffrey Eng. And

this letter had some concerns in some of the areas for which

we are moving in. And as you can see, there were three --

four items that were -- that he had concerns in. One was

the Department's prefer of a minimum income -- gross income

of 5,000. The -- secondly, was the community gardens, for

which the Department was recommending net cultivation of

22,000 square feet, and no less than 25 active participants,

which I think we -- we -- we did incorporate. Waiver of

income requirements for nonprofit to comply with the annual

application procedure.

Again, that was basically back to Number 1 again

with the 5,000. And the last one, Number 4, grant of

waivers for agricultural consumers whose commercial crop and

operations suffered hardships due to natural causes. And

again, it went back to -- referring to the first response

that he had in the letter itself, yeah?

So you all have that number, the one dated

June 14th, and the other one that was June -- the other one

that was June -- dated June 18th, from Mr. Kushi -- right?

So that we're not all confused with so many different

versions that we've gone through up to this point.

Ladies and gentlemen, are we okay with that?

COUNCIL MEMBERS: Yes.


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102CHAIR VICTORINO: Okay. So at this time, I will

open up the floor to the Department, first of all, for your

comments. And then I'll open up the floor for the rest of

the Members for discussion purposes.

Mr. Eng?

MR. ENG: Thank you, Mr. Chairman, Committee

Members. Yeah, I think you received my comments as the

Chair has gone over with you. Really the two major points

of concern are the minimal gross annual income. The

Department does prefer the amount that was proposed in the

prior draft bill. And also, the size of a commercial

garden. Again, we'd like to confirm the minimum cultivated

parcel size of 22,000 square feet, and a group of no less

than 25 active participants.

We haven't had too much experience so far with

community gardens. Much of this is based on the Haliimaile

Community Garden that is a current customer. And from

information that they provided us at the time they submitted

their application, they actually showed a cultivated area of

0.83 acres. And at that time, they indicated they had 45

families participating. I think the gentleman today

indicated there's about 55 participants. So something like

that, we can support.

And that's all I have to comment on at this time.

Thank you.


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103CHAIR VICTORINO: Thank you. At this time, I'd

like to call on Mr. Kushi. If you would explain to the

Members -- because I think the question was brought up why

you weren't willing to sign off on this particular bill. So

if you would give your explanation, please?

MR. KUSHI: Yes, Mr. Chairman. In consultation and

discussions with the staff, as well as other attorneys in my

office; specifically, the Corp. Counsel, we had some

concerns about this section. Specifically, on Section 3 of

the bill at page 2, Section 14.10.015, entitled "Waiver,"

Paragraph B, as in boy. And these are waiver provisions

where for whatever reason -- the consumer does not make the

minimum income requirement -- annual income gross

requirement currently at $2,500.

The section reads as follows: Agricultural

consumers who receive agricultural water rates but do not

meet the minimum gross annual income requirement due to

events or acts of force, force majeure, or whose expenses

result in an annual income of less than $2,500 for a

particular year, may request a waiver of the income

requirement for a period of one year from the Director.

In reviewing this, we are still at a loss as to how

expenses would result in the annual income -- annual gross

income of less than $2,500 per year. My -- my understanding

of -- bottom line is when you look at annual income, you


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104don't look at expenses. You look at expenses for annual net

income or adjusted net income. So, you know, if you spend

like $10,000 on expenses per year, it really doesn't matter

until you get down to deducted the -- deducting those

expenses from your gross income.

So I know Member Johnson brought that up. I was

confused then. I'm still confused now. My office is

confused. So if somebody can explain that?

CHAIR VICTORINO: Mr. Eng, would you like to take a

stab at that?

MR. ENG: Yes, Mr. Chairman. I was confused also

in that -- in this particular case that Mr. Kushi is

referencing. When I was reviewing this the past couple of

days, it seemed to me like in that particular paragraph, it

should make a reference to profit or loss, not income.

Because income, as Mr. Kushi stated, is your total revenue,

total income. When you start throwing in expenses, then

you're talking about net profit or loss. So I was confused.

Thanks.

CHAIR VICTORINO: Thank you. And again, that was

again my way of incorporating all what was given to me by

everybody, includes Ms. -- including Ms. Johnson. So I've

incorporated just about anything and everything everybody

asked to put in within reason to make this bill palatable

and fair to everybody. But if this is creating -- causing


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105confusion, then I need to -- we need to look at that.

Other questions, Members, at this time? Yes,

Ms. Baisa?


There's quite a few things that are concerning me before I

would be ready to vote on this bill. One, of course, is the

issue that Mr. -- Mr. Kushi brings up, but more than that,

some of the testimony that we had today.

First of all, in the letter from Mr. Eng, where he

gives us the Department recommendations, he mentions in

Number 2, talking about community gardens, the

recommendation of 22,000 square feet. And this morning, I

asked the gentleman from the Haliimaile Gardens if they

would meet that. And he said no, that they only have

19,000. And so, you know, if we're trying to accommodate

the community gardens, we might want to take a look at that.

And I'd like to know the Department's reaction to that?

CHAIR VICTORINO: Mr. Eng, you did -- just said

something about Haliimaile Gardens. Can you readdress that,

please?

MR. ENG: Yes, I did earlier. Again, I based my

response about the Haliimaile Community Gardens to what they

submitted at the time of their application. I can share

this map with you. And they do show a net -- what they call

a garden or orchard area of 0.84 acres. They had a total


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106area of 1.43 acres.

COUNCILMEMBER BAISA: Can you translate that into

square feet? Because that's what the ordinance talks about.

It doesn't talk about acres. And that's confusing. We

don't -- we're not comparing apples and apples.

MR. ENG: So they have -- according to what they

submitted at the time of the application, they have about

36,600 square feet.

COUNCILMEMBER BAISA: Uh-huh.

MR. ENG: So I'm not certain how the gentleman came

up with less. But, you know, 19,000 is darn close to half

an acre, to 22. I don't think we would have a particular

problem approving something like that.

COUNCILMEMBER BAISA: I would much prefer that we

correct this language and not say, well, we're not going to

have a problem. Because later on, we may have a problem.

It's been my experience that the best intention, people sit

here and make laws, and then they're gone. And new people

come along and say, well, a law says this. So if we're

going to fix it, I think we should fix it now.

CHAIR VICTORINO: Well, what do you suggest, then,

if I may ask you that question?

COUNCILMEMBER BAISA: Well, I'm suggesting that if

we're going to a say, well, a quarter acre is a quarter acre

or -- you know, what are we agreeing to? That's what I


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wanted to say.

2

CHAIR VICTORINO: Okay.

3

Mr. Kushi?

4

MR. KUSHI: Yes, Mr. Chair, Member Baisa. Maybe I

5

can get some clarification.

6

When the Department recommended 22,000 square feet,

7

which is approximately just over half an acre, a bell rang

8

in my mind. I looked at the zoning codes. In one district,

9

you have Rural zoning. You have Rural, half-acre rural,

10

one-acre and above. So in Rural Districts, ag activities is

11

a permitted use. In Ag zones, ag is a permitted use. In

12

Residential zones, to be an ag -- you can grow your own

13

garden patch. But if you do it for a business, you need a

14

Special Use Permit or some sort of permit -- some other

15

Special Use Permit. I don't know from who.

16

But -- so I looked at the Rural zoning, which is a

17

minimum half an acre. And the way the wording is read -- I

18

mean, the way the wording is right now, it states a minimum

19

lot size -- lot size of half an acre which is actively

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cultivated, not the entire lot size. Okay? So I would

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see -- I would interpret that if you have at least half an

22

acre and you actively cultivate that, not the entire half --

23

half acre, but you actively cultivate it by a minimum people

24

of 15 people -- again, 15 is what is here. The Department

25

wants 25. It's up to you. But I don't feel that the entire


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108lot needs to be actively cultivate -- cultivated.

COUNCILMEMBER BAISA: I totally agree with you.

But, you know, I'm looking at the proposed language from the

Department, and it's very clear. It says, "For a community

garden, the Department would like to recommend the minimum

net cultivated parcel size of 22,000 square feet and a group

of no less than 25 active participants."

The participants are not the issue because we heard

they have 55 people. But when I asked him the question can

you comply with the 22,000 square foot restriction, he said

no, we don't meet it, we only have 19,000 square feet. So

that -- that's why I'm asking this question. So --

MR. KUSHI: And I will respond, it's your choice.

COUNCILMEMBER BAISA: Okay. So it's our choice,

then, to change this. And the -- my suggestion is that in

most of these lots, are like, what, half acres?

MR. KUSHI: Well, as I said before, to be a

permitted ag use in --


MR. KUSHI: -- a County zoning district, rural is a

-- ag is a permitted use. So that's why I took half an acre

minimum.

COUNCILMEMBER BAISA: Okay. So if we have a half

an acre -- and assuming you have a fairly decent house on it

and other buildings, you'll be lucky if you have half of


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109that left. So that's 20,000 square feet. So that's where

you got the 22,000?

MR. KUSHI: No. To be --

COUNCILMEMBER BAISA: Of course, this is not a

house. Because we're talking about a community garden that

doesn't have anything on it. It's just vacant land, I would

imagine.

MR. KUSHI: It's hard to answer your question on

that. But let me say this also, too. Unless I'm wrong, the

applicant, the gentleman who testified --


MR. KUSHI: -- I'm not sure who the parcel owner

is. I hope it's not 25 individuals --

COUNCILMEMBER BAISA: I doubt it.

MR. KUSHI: -- because it won't have 25 meters.

There's only one meter, I'm assuming. And the parcel owner

needs to apply for the ag rate.


MR. KUSHI: And I'm assuming it's -- it's one of

the -- you know, HC&S or Maui Land & Pine or whoever. So

you don't get 25 separate ag rate meters.

COUNCILMEMBER BAISA: I don't think we're looking

for 25 separate ags -- ag meters. We're looking for

allowing a community garden to qualify for ag rates. And

the only way they're going to qualify, if we follow the


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110Department's recommendation, is they have to have 22,000

square feet cultivated, and 25 active participants. They

have the participants, but they don't meet the cultivation

amount. So can we reduce that so that we can cover them, is

what I'm trying to say here? If we want to promote

community gardens, then we got to help them.

CHAIR VICTORINO: Well, why -- why don't we say

this. If that's what you want, what -- would you like to

propose dropping that 22,000 square feet to something like

15,000 square feet? Is that more appealable to you?

COUNCILMEMBER BAISA: In this case, it would help

Haliimaile. Now, I can't say that that's going to help all

the community gardens because we don't have that

information. We only know about Haliimaile. I have

nothing --

CHAIR VICTORINO: Well, the other gardens -- West

Maui and South Maui were part of this discussion. Only

Haliimaile, if I remember correctly, did not -- did not

come. Right? Ron Montgomery came from the Upcountry area.

I don't remember them being there. But anyhow, they might

have. I don't remember.

What do you -- what do you -- Kim?

MS. WILLENBRINK: Yes, Chair. I spoke to

Mr. Montgomery on the telephone -- Ms. Tova -- I can't

remember her name -- about four people about the numbers.


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111And they were all community garden people and they were all

in favor of those numbers.

CHAIR VICTORINO: The number that exists in front

of us right now, the 22,000 square feet and the 15 minimum

people?

MS. WILLENBRINK: And the 15. I believe at the

last meeting -- correct me if I'm wrong, Director Eng -- you

threw out a number of at least 10. And they upped that

number. They were fine with 15.

COUNCILMEMBER BAISA: Yeah. We don't seem to have

a problem with the participants, it's the size of the

cultivated area that's the issue.

MS. WILLENBRINK: Correct. And just the people

that I've talked to, four separate people were in favor of

that.

COUNCILMEMBER BAISA: Well, I still would like to

see this to be able to accommodate Haliimaile. And, of

course, whatever the majority decides is what is going to

happen.

CHAIR VICTORINO: Okay. What the Chair is going to

do at this time, I'm going to call for deferral of this

again because you guys have come up with other things that

are not being covered. And I'll bring this back at the next

meeting. But by that time, I would like to have your mana'o

definitively in writing from all of you, what you would like


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to see this bill contain. And this way, I can make sure

2

that we don't, again, go through a long, drawn-out

3

discussion. Because we always seem to come right back to

4

where we started.

5

And so I'm going to defer this matter so that we

6

get more time to work on these various issues that have been

7

brought up. And if you can, bring that mana'o to the table

8

in writing so we can look at it so we can all understand. I

9

also asked the last time if you had income levels that, you

10

know, you would like to recommend, to please recommend it.

11

I heard nothing from anybody. So I'm just going to throw it

12

that way, that way we -- because it's almost 12, and some

13

people have to leave by 12, and they requested to leave by

14

12. So I don't want to inhibit them or hold them back from

15

their appointments.

16

Mr. Pontanilla?

17

VICE-CHAIR PONTANILLA: Thank you. In regards to

18

the dollar amount, I think I told you that I would recommend

19

$1,000 as, you know, noted in the USDA, as well as the NSRC.

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And when you look at some of the -- well, one of the

21

testifiers handed out with his written testimony in regards

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to -- again, on the USDA and noting the $1,000.

23

But coming back to Corporation Counsel, in regards

24

to the land use side, you know, we're talking about rural

25

half acre. What if they were to have -- and maybe I'll put


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it in writing --

2

CHAIR VICTORINO: Please.

3

VICE-CHAIR PONTANILLA: What if you were to have a

4

community garden in a subdivision that is a residential

5

subdivision, you know, for a community garden when it first

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being -- you know, as it developed, how would you handle

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that? Would it be like a special permit or a conditional

8 permit that is required to have the community garden in a

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proposed residential subdivision?

10

MR. KUSHI: Mr. Chair.

11

Member Pontanilla, my recollection is like in the

12

R-1, R-2, R-3 Zones, you need a -- commercial community

13

garden, you would need a Special Use Permit of some sort. I

14

can get back to you as to the specific language. But it's

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not an ordinary permitted residential use.

16

VICE-CHAIR PONTANILLA: Thank you.

17


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CHAIR VICTORINO: Okay. Thank you.

19

Yes, Mr. Molina?

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COUNCILMEMBER MOLINA: Chair, just one quick

21

question for Mr. Kushi related to the testimony given to us

22

today by Mr. Kane with an individual -- individual farmer

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applying to give a donation to a school. I guess he was

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citing language in Section 3(c), where a nonprofit

25

organization is -- you know, would be given that privilege.


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114Is there any place in here that could address

Mr. Kane's request, or do we need to consider additional

language to specify an individual farmer that would like to

make the same type of charitable donation like that of a

nonprofit organization and get the -- I guess, the tax

benefit?

MR. KUSHI: Well, Member Molina, maybe Member

Nishiki can answer you better than that. But, you know, I'm

assuming you're talking about for-profit individuals or

corporations. I mean, usually, those donations become a

deduction to get to net annual income. I can't see that --

I mean, nowhere in the IRS code or the State code can you

add it to income. You know, I'm not sure how that would

work.

COUNCILMEMBER MOLINA: So in short, it's really not

necessary to apply it into this ordinance? An individual

farmer can do it on their own in terms of just -- in their

own tax preparation, I guess, that they made a donation and

they can write it off, their legitimate business?

MR. KUSHI: Yeah, they can right it off as a

deduction.

COUNCILMEMBER MOLINA: Deduction, uh-huh.

MR. KUSHI: But I don't see how they can add it

back as income to qualify for the ag rates. I mean, this

section was specifically addressed for nonprofits --


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1151

COUNCILMEMBER MOLINA: I see.

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MR. KUSHI: -- who, you know, in the normal course,

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they donate.

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COUNCILMEMBER MOLINA: Okay. I was kind of

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interpreting him wanting some form of consistency. So but

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anyway, okay, I just wanted to get feedback from our side on

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that request from Mr. Kane. Thank you.

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CHAIR VICTORINO: Thank you. Thank you. That was

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a good point too.

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Yes, Mr. Kaho'ohalahala?

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COUNCILMEMBER KAHO'OHALAHALA: Thank you, Chair.

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At the last meeting, I was the one that requested that the

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Director to help us understand why 22,000 feet as the

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requirement. Because I think that is going to serve to be

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probably the more restrictive. And I wanted to know what

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would justify 22,000 feet, you know. And that was what I

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had requested that you provide for some kind of nexus or

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understanding to that area of -- of -- for community garden.

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And your response doesn't re -- doesn't explain any of that,

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it just says this is what you recommend. So I still don't

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know why you chose 22,000 feet.

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Corporation Counsel is talking about, you know,

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zoning. And so that's -- but that still doesn't mean it's

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22,000 feet. So I'm concerned that the 22,000 feet may be


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WR 6/15/10

116more prohibitive than we want it to be. And maybe that's

the issue here. And I would want to understand why we

would -- we would come to some kind of number like that?

And even, you know, it's -- it's problematic too,

to even think about the numbers of people that you would

have, you know. Because if we're looking at community

gardens, we're saying that you can only be a community

garden if you meet -- meet these kinds of criteria of 22,000

plus X-amount of people. That, to me, is going to be where

the major difficulty would be in us trying to encourage this

from happening. So I still have concerns about those two

areas, you know.

MR. ENG: Okay, if I may. At the time of the last

meeting when you posed that question, the only knowledge I

had of a community garden was the Haliimaile Community

Garden. I did not have all the details with me. I was

going pretty much by memory. At that time, I kind of recall

that it was about half an acre or so in size. And again,

the information I do have confirms the actual farmed area is

0.83 acres.

Again, the decision is yours, what you think is

appropriate. I just want to throw out something because at

that time, I didn't hear any discussion among the Committee.

So just for the sake of discussion, I threw it out as a

starting point. So that's the basis for my comments last


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WR 6/15/10

117meeting.

CHAIR VICTORINO: Thank you, Mr. Eng.

COUNCILMEMBER KAHO'OHALAHALA: Okay. And my only

concern is that when you throw the number out, then what

we've been doing is we've been polling people as to whether

or not they think that the number is appropriate. But that

does not speak to whether or not that's a good policy across

the board. So I -- that's what I'm cautioned with is that

we may have some agreement on numbers, but that doesn't

answer the question about why that particular number, you

know, as the measure of a community garden. So that's my

concern.

CHAIR VICTORINO: Sure. Thank you,

Mr. Kaho'ohalahala.

Mr. Nishiki?

COUNCILMEMBER NISHIKI: Yeah. And again, the

concern -- I don't think we've heard from the Department

that whatever the land may be zoned is how agricultural

water rates are qualified. So I think, as Gladys has been

saying, the definition of community gard -- community garden

maybe should have no big large size or the amount of people.

Because maybe a lot of them start with a small parcel and

then increase as more people participate. But if we say

that it's a certain size, then, as Gladys has said, we're

eliminating it.


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WR 6/15/10

118And I think that -- not I think -- I know that this

Committee definitely wants to encourage community gardens

and people to grow and supplement their incomes and food

supply. So whatever way we do to inhibit it I think is bad.

So maybe we need to look at this, Mr. Chairman. Thank you.

CHAIR VICTORINO: Thank you. And, like I say,

before our next meeting, if you guys can make sure that you

have whatever adjustments or changes you want to -- to put

in here, I will work on it one more time. But again, this

has been the sixth or seventh meeting we've had on this. I

have had many other meetings with community groups and

individuals. This is not my plan. It's been the people's

plan. And that's where it's at.

And so I will defer this matter, with no objection,

and with a time certain at our next meeting. And, you know,

hopefully, we can get this completed. We are taking up time

that I cannot get anything else done at this point. But

that's the way it is.

So without any objections, I'd like to defer this

matter?


COUNCIL MEMBERS VOICED NO OBJECTIONS (Excused: BKM)

CHAIR VICTORINO: Okay. Thank you.

ACTION: DEFER pending further discussion.

CHAIR VICTORINO: Okay. And so I want to thank


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everybody for their hard work and thank the public at large

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for being here. I will call the Water Resources Committee

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of June 15th adjourned. ...(gavel)...

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ADJOURN: 12:03 p.m.

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WR 06/15/10

120CERTIFICATE

County of Maui )

) ss.

State of Hawaii )

I, CAMMIE GILLETT, a Certified Shorthand Reporter

in and for the State of Hawaii, do hereby certify that the

foregoing pages comprise a full, true and correct transcript

of the proceedings had in connection with the above-entitled

matter.

Dated this 1st day of July 2010.

CAMMIE GILLETTRegistered Professional ReporterHawaii Certified Shorthand Reporter #438

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