An attorney representing a company appealing the county’s denial of a Special Management Area permit to drill for and bottle water in Hilo argued in court Tuesday that the Windward Planning Commission’s decision was based on “speculation about things that could potentially happen.”
Meanwhile, a county lawyer told Hilo Circuit Judge Greg Nakamura the commission’s 5-1 vote May 7 to deny Piilani Partners LLC’s permit application was “just, reasonable and supported by substantial evidence.”
Piilani Partners filed suit in June seeking a court order vacating the permit denial and remanding the matter back to the commission “to enter an order granting the SMA application.” The company’s plans to drill into the Maunakea Aquifer and build a bottling plant on a 2.57-acre leased parcel zoned for light industrial use near the intersection of Piilani and Mililani streets drew public objections ranging from concerns about noise from the plant affecting neighbors, plastic waste, commercialization of public trust resources and Hawaiian sovereignty.
The commission ruled against Piilani despite a recommendation for approval by the county’s Planning Department on July 24, 2018. The department determined “the proposed development and related improvements will not have substantial adverse impacts on coastal resources … .”
One point of contention during the hearing was assurances by Tom Nance, a groundwater hydrologist representing Piilani, that the well’s maximum water extraction rate — up to 200,000 gallons a day — would be but a fraction of the maximum sustainable yield of the aquifer. Nance said the project would cause only an infinitesimal change of the water flow of the aquifer into the ocean, causing no impact to marine life.
“He continually makes these statements that there would be no adverse impact to the quality of the water. There would be no adverse or permanent impact to the yield or quality of water. But how do we know?” argued Deputy Corporation Counsel Malia Hall. “How can we know that for sure when, basically, everything he’s saying is just an educated guess. And I think that’s what the commission was faced with.”
Pamela Bunn, Piilani’s attorney, described the question “How do we know?” as “cogently asked.”
“There was so much speculation about things that could potentially happen, and much of it by uninformed speculators,” Bunn said. She added those questions could be answered by the state Commission on Water Resource Management.
“Let the Water Commission apply the well-drilling and pump-installation standards. That’s the purpose of those is to protect the water resources. If the Water Commission says no, this is too risky, then fine. We have a neutral answer, and everybody’s going to respect what the Water Commission says.”
Hall also took issue with Piilani’s plans to use plastic bottles in the special management area.
“There’s no denying that cumulative plastic use of all developments has had a substantial adverse impact on our beautiful coastal zones and marine life,” she said. “But Piilani didn’t even consider … using glass bottles because Piilani doesn’t care about the public trust or Hawaii’s coastline. Piilani cares about how much money it can make selling fresh artesian Hawaiian water.”
Hall also argued that Piilani “has not met its heavy burden or made a convincing showing that the commission’s findings were clearly erroneous.”
“A recycling center versus keeping hundreds of thousands of bottles from even being produced and entered into our waste stream. What is more in the public trust interest? What is more in the Hawaii coastal interest?” she asked, rhetorically.
Bunn argued that Hall’s argument about cumulative impacts of plastic “necessarily means every use of plastic in the SMA is going to add to what we already have.”
“I respectfully request that based on the facts, the court can rule as a matter of law that there is no violation of the public trust doctrine here,” she said. “And regarding the SMA, I would also respectfully submit that if there is to be a de facto ban on plastic in the SMA, it has to be rule-making.”
Nakamura said he would take the issue under advisement and issue a decision later.
Email John Burnett at firstname.lastname@example.org.