HomeMy WebLinkAbout 11/06/2013 Council Meeting Minutes COUNCIL MEETING
NOVEMBER 6, 2013
The Council Meeting of the Council of the County of Kaua`i was called to
order by the Council Chair Jay Furfaro at the Council Chambers, 4396 Rice Street,
Room 201, Lihu'e, Kaua`i, on Wednesday, November 6, 2013 at 9:05 a.m., after
which the following members answered the call of the roll:
Honorable Tim Bynum (present at 9:20 a.m.)
Honorable Gary L. Hooser
Honorable Ross Kagawa (excused at 3:20 p.m.)
Honorable Mel Rapozo
Honorable JoAnn A. Yukimura
Honorable Jay Furfaro
Chair Furfaro: Aloha and good morning everyone. Can the
Clerk so note that I got a call from Mr. Bynum saying that he is running about
twenty (20) to twenty-five (25) minutes late today. I would like to get an approval of
the agenda, but I would like to note that about two and a half (2.5) months ago, I
invited a group of Department of Land and Natural Resources (DLNR) Engineers,
Land Division Managers, and some agricultural people to be available. I am very
pleased that they are here today, but I had a request as the Chair to place this as
the first item on our agenda today. May I have an approval of the agenda?
APPROVAL OF AGENDA.
Mr. Rapozo moved for approval of the agenda as circulated, seconded by
Mr. Kagawa, and carried by a vote of 5:0:1 (Mr. Bynum was not present.)
Chair Furfaro: For the purposes of Public Comment, I would
like to have an opportunity to have a reading of Council Rule 13(e). May I ask the
Clerk to read through that, please?
PUBLIC COMMENT.
Pursuant to Council Rule 13(e), members of the public shall be allowed a total of
eighteen (18) minutes on a first come, first served basis to speak on any agenda
item. Each speaker shall be limited to three (3) minutes at the discretion of the
Chair to discuss the agenda item and shall not be allowed additional time to speak
during the meeting. This rule is designed to accommodate those who cannot be
present throughout the meeting to speak when the agenda items are heard. After
the conclusion of the eighteen (18) minutes, other members of the public shall be
allowed to speak pursuant to Council Rule 12(e).
Chair Furfaro: Thank you, Mr. Clerk. May I ask the Staff if
there is anyone who is signed up to speak today?
RICKY WATANABE, County Clerk: We have one speaker who signed up.
His name is Lonnie Sykos.
COUNCIL MEETING 2 NOVEMBER 6, 2013
Chair Furfaro: Lonnie, please come up and introduce
yourself.
There being no objections, the rules were suspended.
LONNIE SYKOS: Good morning, Council Chair,
Councilmembers, and members of the public. Thank you for the opportunity to
speak this morning. For the record, my name is Lonnie Sykos. On the Consent
Calendar, there is C 2013-352. In regards to the Integrated Solid Waste
Management, has the overtime and sick leave payroll scam...
Chair Furfaro: Excuse me, Lonnie. Gentlemen, please get
your signs organized without any dialogue. Do not hold your signs above your head
that blocks my view of the audience because I need to recognize people. Lonnie, I
apologize for the interruption. You have the floor.
Mr. Sykos: Thank you, Chair. My question is whether
or not the overtime and sick leave excessive expenses that were noted earlier in the
year have actually been addressed and whether or not it was simply shifted to a
different pool of people? Are the same overtime issues occurring or has it actually
been addressed and the public is paying a reasonable amount of money for our Solid
Waste issues? In regards to C 2013-353 which are the cost items for the Hawai`i
Government Employees Association (HGEA) Bargaining Unit 13. In the State of
Hawai`i Organization of Police Officers (SHOPO) negotiations the County did an
extremely poor job according to the Arbitrator in representing the County's
interests. Will the Council have an opportunity to address the Administration to
see that they do a better job of representing the public's interest in the upcoming
union bargaining agreements? In regards to the County of Kaua`i vs. Michael
Guard Sheehan, this thing is dragging on forever and ever, and one ponders why it
is that the County Attorney's Office has such a difficult time finding a reasonable
settlement when in all of our Human Resources (HR) issues, we do not have any
problems finding a settlement at all. We do look at the issue here of why it is so
hard to settle in some things and so easy to settle in others, but this is dragging on
and on and it is time for the County Attorney to figure out how to bring it to a
resolution. In the Resolution No. 2013-72, I would like to note that had the Council
in its wisdom founded the Auditor, the Auditor could have had the oversight over
the environmental study and it would have been done much less expensively than it
is going to occur now. We could have avoided all of this public contention and at
least one hundred thousand dollars ($100,000) spent on Council Meetings, and all of
the public turmoil. Is that my three (3) minutes?
Chair Furfaro: That is your three (3) minutes, Lonnie.
Mr. Sykos: Thank you and my support for the Auditor
and my prayers that the County does not dig a hole that it cannot get out of when
they take action against him. Thank you.
Chair Furfaro: Lonnie, before you leave, I was trying to find
out if we had Councilmembers who wanted, contrary to my practice, address
anything that was said, but we do not. Lonnie, I do want you to know that the issue
for Hanalei and Black Pot is currently in court as we speak.
Mr. Sykos: Terrific. Thank you.
COUNCIL MEETING 3 NOVEMBER 6, 2013
Chair Furfaro: Do we have anyone else who wants to
exercise Council Rule 13(e)?
Mr. Watanabe: There is no one else.
Chair Furfaro: Okay. Ken, thank you for pointing that out.
There are two (2) members who are indicating that they signed up, Mr. Clerk.
Mr. Watanabe: Okay. Those people are Joe Rosa, Ken
Taylor, Glenn Mickens, and Mark Randolph.
Chair Furfaro: Okay. We have four (4) more people who
want to speak on five (5) vacancies. Is there anyone else? If not, call the first one,
please.
Mr. Watanabe: Up next is Joe Rosa, followed by Ken Taylor.
Chair Furfaro: Joe, you are up.
JOE ROSA: Good morning, members of the Council. For
the record, Joe Rosa. I will speak on the subject that has to do with Ernie Pasion. It
has been four (4) weeks that I have come up here and given testimony on behalf of
Ernie Pasion. I do not know what is taking so long because like I always mention,
and other people also mention and use the same two (2) words that I stress time
and time again— "just cause." "Just cause" is a serious, big word. If you do not
have any "just cause" for dismissal of his work that he has done or if he cannot do
the work, what else do you have? You need just cause. I know there are
personalities involved, which I can use another two (2) words that I have heard, and
it has ruffled some people's chairs which is "excel" and "excellent." It has ruffled
certain parties' seats. If that ruffles that person's seat, it means that there are
personalities involved. No other cause and no reasons have been given for all this
delay, so there are personalities involved. You, members on our Council, I am
pretty sure you go by those rules of"just cause" and not personalities for dismissal,
suspension, or come what may. Your conscience is your conscience and it is
supposed to be your guide. You need "just cause." Former Honorable Judge Alfred
Laureta stated the same two (2) words I stress, "just cause." There is strong
emphasis on those two (2) the words "just cause" and any other thing that is causing
a delay seems to be coming down to personalities, probably from the top executives
down to the Council here. Personalities are involved in the Auditor's Office. I
believe in the two (2) words "excel" and "excellent." If credit is due, give it to that
person because it was stated in the papers and it is online. It was "excellent." He
excelled in his audit reports and it was excellent reports that were given to him as
credit of his doings and his findings.
Chair Furfaro: Thank you, Joe. That was your three (3)
minutes.
Mr. Rosa: All right. I will wrap it up.
Chair Furfaro: You are wrapped up. You had three (3)
minutes.
Mr. Rosa: I usually can say one last sentence like how
a judge has the last sentence. I am not a judge, but be fair, Jay.
COUNCIL MEETING 4 NOVEMBER 6, 2013
Chair Furfaro: I think I am extremely fair. Your three (3)
minutes is up.
Mr. Rosa: Not today.
Chair Furfaro: Thank you, Joe. Next speaker, please.
Mr. Watanabe: The next speaker is Ken Taylor, followed by
Glenn Mickens.
KEN TAYLOR: Chair and members of the Council, my name
is Ken Taylor. The Institute of Internal Auditors defines "internal auditing" as an
"independent, objective assurance, and consulting activity designed to add value
and improve an organization's operations. It helps an organization accomplish its
objectives by bringing a systematic, diplomatic approach to evaluating and
improving the effectiveness of risk management control and governance processes."
I find it very difficult to understand how anybody would think that this department,
our internal auditing department, could operate as an independent entity when you
cut the budget by thirty percent (30%) in this next budget. I also have a real
problem in understanding where six (6) audits to date have been done and only
three (3) of them have been on the Council agenda. The other three (3) of them
have been neglected at this point in time for over a year. I do not know how you feel
that you are taking advantage of the good work that our Auditor has done in
looking at improving the effectiveness of risk management control and governance
processes for this community. You have said over and over again that you control
the purse strings, but you have dropped the ball in this particular situation in my
opinion. I feel that it is really sad that we are here today again asking to get on
with the County's business by reinstating the budget needed to continue the fine
work that Ernie has done as our County Auditor. I hope that as you move forward,
you will drop this issue of whether he gets fired, laid off, or whatever you want to
call it, and restore the budget so he can get back to doing the fine job he has done to
date. Thank you.
Chair Furfaro: Thank you for your testimony, Ken.
Mr. Watanabe: The next speaker is Glenn Mickens, followed
by Mark Randolph.
(Mr. Bynum is noted as being present at 9:20 a.m.)
GLENN MICKENS: Thank you, Jay. For the record, Glenn
Mickens. You have a copy of my testimony and a copy of the Auditor's... what they
said. Let me read it for the viewing public, "This charade, this conspiracy to get rid
of our Auditor, Ernie Pasion, continues. Month after month, you members of the
Council, County Attorney, and your Special Counsel paid by our tax dollars
stealthily go behind closed doors and no one has the guts to tell the public why
Ernie is being pushed out of a job that he did with honor, dignity, and integrity.
Even in a murder case, the public is told what the accused is being prosecuted for.
With Executive Session after Executive Session being held and never a word coming
forth as to any charges against Mr. Pasion, this issue continues to be a farce. These
Executive Sessions are an abuse of the constitutional rights and violation of due
process rights and people know of the charges made against him and to confront
their accusers. Some members of this Council seem unwilling to conduct affairs
COUNCIL MEETING 5 NOVEMBER 6, 2013
openly and honestly. Actually, it would be a laughable comedy the way it is being
handled, except for the fact that it is causing untold harm, disgrace, and pressure in
financial hardship on a man who excelled at his job. A job he did so well that the
public unanimously stands behind him and supports him. See the enclosed
statement from Ernie's peers. The case is unprecedented for keeping the public in
the dark by not divulging why the Mayor and some members of Council have is to
radically cut his budget that his Office can no longer function the way it should be
according to Government Auditing Standards. It is a very sneaky backdoor method
of trying to fire someone instead of being open and just getting five (5) members of
Council to give him his pink slip. Of course, somewhere in this debacle, those
pushing for dismissal must show just cause for their serious action... for that
matter, any cause. There is not one shred of evidence for what is being done.
Possibly, this is why so many Executive Sessions and those pushing for dismissal
cannot find legitimate means for firing him. Why has the public never been told
why the County has never hired outside Counsel to defend Ernie, whereas in all
other such cases, this has been the procedure? If any of you Councilmembers or the
Mayor want this honorable man fired, at least have the fortitude to say you do and
by all means tell us why. Tell us why you think that this vendetta and getting the
finger pointed at the gross incompetence in this system by doing such thorough
auditing will be worth the taxpayers having to pay thousands or more dollars in the
inevitably settlement that Ernie will get in court. I only hope that when the vote
time finally comes around to either restore the Auditor's budget and let him
continue his fine work or fire him; the people, the voters, who put you in these
chairs will remember who created this problem which untold legal fees being paid
by them and in making sure they are not reelected.
Mr. Watanabe: Three (3) minutes.
Mr. Mickens: Thank you, Jay.
Chair Furfaro: Glenn?
Mr. Mickens: Yes.
Chair Furfaro: Although this is under Council Rule 13(e),
we should not have any dialogue with you, I will recognize Councilmember
Yukimura.
Ms. Yukimura: Thank you, Chair. I have to address a
grossly misunderstood point and that disclosure is the choice of Auditor. Any
sessions would be open if he would give his consent. They are closed for his
protection.
Chair Furfaro: Thank you, Councilmember Yukimura.
Mr. Mickens: May I respond?
Chair Furfaro: You should not, Glenn. She just wanted to
address something.
Mr. Mickens: Well, she made a statement. I would like to
be able to at least respond to it.
Chair Furfaro: She wanted to clarify...
COUNCIL MEETING 6 NOVEMBER 6, 2013
Mr. Mickens: Can I clarify?
Chair Furfaro: If you would hold on, I will explain
something to you. I will give you the courtesies that we are trying to share with you
when you poor out bad information. She was trying to clarify something that was in
your statement that was incorrect about procedure. Now you may respond.
Mr. Mickens: Thank you. Mr. Pasion is more than willing
to have an open session of this thing, but for the protection of the people that are
behind him, he wants their protection done. For clarification, I wanted that noted.
Chair Furfaro: Thank you for your opinion on that.
Mr. Mickens: Thank you.
Mr. Watanabe: The next speaker is Mark Randolph.
MARK RANDOLPH: God morning. My name is Mark Randolph.
Really, I do not have too much to add from what was eloquently said here. There
has not been the disclosure that I have wanted to see either and for whatever
reason, and everything that I have done to look into this seems to be accusatory, but
I have not seen proof. Here is what I do know and this is the reason I am standing
up here today because I have been friends with a lot of elected officials and
representatives. In my time as a Pastor for the last twenty (20) plus years, I have
walked with a lot of men and women in seats of power. Every once in a while, I run
across one or two (2) that I really, really like outside of their position because they
are honest people, even when they make mistakes. Not that I am implying Ernie
has done so, but they are honest people and they walk with integrity and truly serve
people. I believe with all of my heart that Ernie Pasion is one of those people. I do
not know about conspiracies. I have sat on a number of boards, as well. I know
that there are two (2) sides to every story, but in the same measure that you folks
are taking towards trying to make a good decision about Ernie, who has given
himself to completely serving the people with as much integrity as he can, I hope
you would hold yourselves under that same scrutiny because that is the only thing
we can do. "In the measure we judge, it is judged back to us." I believe that. It is
not just a biblical thing, but a life thing, so I ask for your consideration of all that
Ernie has done for this County and his walk of honesty as you deliberate, truly.
Thank you very much.
Chair Furfaro: Thank you for your message this morning,
Pastor.
Mr. Randolph: Thank you.
Chair Furfaro: Do we have a sixth speaker?
Mr. Watanabe: That was it.
Chair Furfaro: Okay. Very good. Now I will go ahead and
call our meeting back to order, as we have gone through Public Comment. I would
like to move on to Minutes that we need to approve, please.
COUNCIL MEETING 7 NOVEMBER 6, 2013
There being no objections, the meeting was called back to order, and
proceeded as follows:
MINUTES of the following meetings of the Council:
October 8, 2013 Special Council Meeting
October 9, 2013 Council Meeting
October 9, 2013 Public Hearing re: Bill No. 2499, Bill No. 2500, and
Bill No. 2501
October 16, 2013 Special Council Meeting
October 23, 2013 Council Meeting
October 23, 2013 Public Hearing re: Bill No. 2502
Ms. Yukimura moved to approve the Minutes as circulated, seconded by
Mr. Kagawa, and unanimously carried.
Chair Furfaro: Thank you. Mr. Clerk, can we move on to
the Consent Calendar?
CONSENT CALENDAR:
C 2013-352 Communication (10/07/2013) from the Environmental Services
Management Engineer, transmitting for Council consideration, proposed
amendments to Section 21-9.2(d) of the Kaua`i County Code 1987, as amended,
relating to Integrated Solid Waste Management: Mr. Kagawa moved to receive
C 2013-352 for the record, seconded by Ms. Yukimura, and unanimously carried.
C 2013-353 Communication (10/22/2013) from the Mayor, transmitting for
Council consideration, pursuant to Sections 89-10(b) and 89C-5, Hawai`i Revised
Statutes (HRS), the cost items for Hawai`i Government Employees Association
(HGEA) Bargaining Unit 13 between July 1, 2013 and June 30, 2017, pursuant to
Section 19.13(B) of the Kaua`i County Charter: Mr. Kagawa moved to receive
C 2013-353 for the record, seconded by Ms. Yukimura, and unanimously carried.
C 2013-354 Communication (10/24/2013) from the Director of Finance,
transmitting for Council consideration, proposed amendments to
Ordinance No. B-2013-753, as amended, relating to the Fiscal Year 2013-2014
Operating Budget, by Revising the Amounts Estimated in the General Fund, Solid
Waste Fund, Sewer Fund, Golf Fund, Highway Fund, Housing and Community
Development Fund, Kalepa Housing Fund, and Pa'anau Housing Fund:
Mr. Kagawa moved to receive C 2013-354 for the record, seconded by Ms.
Yukimura, and unanimously carried.
Chair Furfaro: Thank you very much. Let us go to
Communications and recognize the request by myself as the Chair and to go to
C 2013-355 first, please.
There being no objections, C 2013-355 was taken out of the order.
COMMUNICATIONS:
C 2013-355 Communication (10/01/2013) from Council Chair Furfaro,
requesting the presence of the County Engineer, to participate in a discussion with
COUNCIL MEETING 8 NOVEMBER 6, 2013
State Officials on the status of the State Reservoirs that were closed in recent years
pursuant to the Dam Safety Act of 1987: Mr. Rapozo moved to receive C 2013-355
for the record, seconded by Mr. Kagawa.
Chair Furfaro: Mr. Dill, I am going to ask you to come up,
please. I would like you to identify our DLNR personnel that are here from the
Engineering Division, Land Division, as well as the Department of Agriculture. We
have enough seats up there for everyone.
There being no objections, the rules were suspended.
LARRY DILL, P.E., County Engineer: Good morning, Chair Furfaro
and members of the Council. For the record, Larry Dill, County Engineer. Carty
Chang is here with us from the State and I will defer to him and ask him to
introduce the people that are here along with him from the State today.
Chair Furfaro: Okay.
CARTY CHANG, DLNR Engineering Division, Chief Engineer: Good
morning, Chair and County Councilmembers. Carty Chang, Chief Engineer of the
Engineering Division of the Department of Land and Natural Resources. I would
like to introduce several members from DLNR. To my right is Edwin Matsuda. He
is the Engineer who heads the Dam Safety Program. Toward the back is Ian
Hirokawa who works for the Land Division of DNLR. Kevin Moore, sitting next to
him, is the Assistant Administrator for the Land Division of DLNR. Milo Spindt is
the Kaua`i Land Agent for DLNR and Jimmy Nakatani is the Executive Director of
Agribusiness Development Corporation, which is attached to the Department of
Agriculture.
Chair Furfaro: Mr. Dill, maybe it is a situation where maybe
you vacate your seat and we bring up a couple more representatives. Carty, can you
identify two (2) more members to come up? I would appreciate some general
narrative from you folks. I know you visited with Kaua`i Planning and Action
Alliance's (KPAA) annual meeting, but I am glad it worked out in the request for us
to get you here. Obviously, we need some information for ourselves as it relates to
our water management plan that is required to be updated by all Counties.
Obviously, water is a sincere concern at this time, especially for our agricultural
business because without water, there is not Ag. We have some pending questions
that deal with the status of the reservoirs that we have. We understand that the
trout reservoir on the west side is going through some reviews at present, but we
would certainly like to also know about the twin reservoirs and others on the
island, and what is progressing here for us to be assured of a water source for
agriculture and ranching. If you could give us a little overview, I would appreciate
it.
Mr. Chang: I think one of the questions was to give a
general overview of the Dam Safety Program and from that point on, there will be a
better understanding and I think we can get into the specifics that you just asked
about specific reservoirs in the State. I passed out a presentation. I am not going to
go exactly page by page through it, but you can use this as a tool. I am going to take
pieces of it and elaborate on a lot of it. Unfortunately, it is not numbered by page
but there are only twelve (12) slides so I will try to do the best I can.
COUNCIL MEETING 9 NOVEMBER 6, 2013
Chair Furfaro: Excuse me, I have a question. First of all,
you obviously never talked to our Chief Engineer because the Chair never allows
presentations without page numbers, but I will make an exception.
Mr. Chang: Thank you, I appreciate that.
Chair Furfaro: Councilmember Yukimura, do you have
something to add?
Ms. Yukimura: Is it something we can project for the public?
Mr. Chang: We do not have... you have this specific one
on the laptop? We have extra copies.
Chair Furfaro: There might be a few people in the audience
who would want a copy, but if you have something on your laptop that we can tie to
an overhead, it would be very much appreciated.
Ms. Yukimura: Or can you just send it to us? Can you
E-mail it to us?
Chair Furfaro: Why do you not continue with the narrative
while they are working out the pieces here?
Mr. Chang: Okay. I want to first start off with our
authority and some background information on what gives us, the Department, the
authority to regulate dams. In July 2007, Act 262 was signed into law by former
Governor Linda Lingle. This Act is known as the Dam and Reservoir Safety Act of
2007 and codified in State law as Section 179D. Subsequently, Governor
Abercrombie approved the Hawai`i Administration Rules (HAR) Chapter 190.1 in
February 8, 2012. This is not a new law. The original law was passed in 1987, as
you mentioned. The impetus in the 2007 revised law was much attributed to the Ka
Loko disaster; four hundred million gallons of water. As we all know, seven (7) lives
were lost, as well as a significant amount of property damage and environmental
damage. The intent and purpose of the 1987 law, as well as the revised 2007 law, is
to protect the health, safety, and welfare of the citizens of the State by reducing the
risk of failures of the dams or reservoirs. Public safety was the primary impetus
behind that law. The Board of Land and Natural Resources is charged with
administering the Dam and Safety Program in which the Engineering Division of
the DLNR carries out the day-to-day activities of the program. The Dam Safety
Program solely relies on Department special funds and fees collected through the
program to operate. Up until 2009, the program was partially general funded;
however the Legislature switched the means of financing to make the program one
hundred percent (100%) self sufficient through special funds and the collection of
fees from dam owners.
What do we regulate? We regulate dams, but there is actually a statutory
definition of a dam. A "dam" is defined as "an artificial barrier, including a
pertinent (inaudible) impounds to divert water and meets these two (2) criteria
which is twenty-five (25) feet in height or has an impounding capacity."
"Impounding" means "the amount of the quantity of water of fifty (50) acre feet or
seventeen (17) million gallons," as illustrated in this graph. There are certain
exceptions from regulatory jurisdictions, which are dams less than six (6) feet in
height or have a storage capacity of less than fifteen (15) acre feet or five (5) million
COUNCIL MEETING 10 NOVEMBER 6, 2013
gallons. Currently, one hundred thirty-eight (138) dams statewide meet these
criteria. About thirty-one percent (31%) of those dams are Government-owned. Not
all dams are owned by the Department of Land and Natural Resources. There are
dams owned by the Counties, Department of Hawaiian Home Lands (DHHL),
DLNR, and the Department of Agriculture. There is a Federal dam within the
jurisdiction. The remaining sixty-nine percent (69%) fall under private ownership.
Kaua`i County specifically has fifty-four (54) dams that meet this criteria. There
are references in the slide that illustrate location, names of dams, and so forth.
We recognize that dams serve an important function like irrigation for
agriculture, flood control, water supply, habitat, in some cases hydropower,
recreation, and from DLNR's perspective, recharge of aquifers are very important as
well; however, we also recognize that dams, if not properly maintained or brought
into compliance with current standards, can pose a serious public safety risk as
dams have the potential to kill people and create widespread damage to property
and the environment, as we experienced seven (7) years ago. We have a slide here
that talks a little bit about incidents and about common failures or common
methods that dams fail. I think definitely that the message is that there is
certainly a public safety risk when dams are not properly maintained in accordance
with the law.
Why do these dams need to be regulated? Most of the dams statewide were
built at the turn of the century or the early 1900's. Obviously, they are getting to be
century in age. Actually, all of them are earthen structures and have experienced
deferred maintenance and are deficient by today's standards. The dams are
classified into hazard potentials. There are three (3) categories of hazard
potentials. "High hazard" is defined as "a dam failure that will result in probable
loss of human life." A "significant hazard dam" means "that a dam failure will
result in no probable loss of human life, but can cause major economic loss,
environmental damage, destruction of lifeline facilities, or impact other concerns."
A "low hazard" potential dam means that a "dam failure will result in no probable
loss of human life and low economic or environmental loss, or both." Economic loss
in these cases is principally limited to the owners' property.
Out of the one hundred thirty-eight (138) dams, one hundred twenty-three
(123) of them are high hazards; three (3) are significant; and low are nine (9) dams,
which means that over ninety percent (90%) are classified as high or significant
statewide. On the island of Kauai, forty-seven (47) are considered high and one is
considered significant, so close to eighty-eight (88%) of the dams on Kaua`i fall into
the high or significant category. We also categorize dams by their condition. The
conditions we look at "are they satisfactory or fair?" "Are they poor?" "Are they
unsatisfactory?" Out of the one hundred thirty-eight (138) statewide dams, around
fifty percent (50%) are categorized as either poor or unsatisfactory. Out of the
fifty-four (54) dams on Kaua`i, over fifty percent (50%) or about fifty-five (55%)
percent are considered poor or in unsatisfactory condition.
How do we regulate? The Engineering Division has functions which
include... I think this slide kind of tells all of the different functions of the program.
Classifying dams— we conduct inspections with the landowners. We permit
alterations, modifications, or removals of dams. We also are resourced to the dam
owners or the community. We provide technical assistance through training and
outreach. We issue certificates every five (5) years to dam owners if they want to
impound water within their reservoirs. Also, we are charged with enforcement
COUNCIL MEETING 11 NOVEMBER 6, 2013
authority, so if there is noncompliance, we have the authority under the law to
penalize dam owners.
I think we have been asked this question in past, which is "what is the State
doing?" I just want to talk a little bit from the regulatory standpoint. Obviously,
our job is to uphold or regulate what is required by law; however, we recognize that
we need to provide the dam owners the tools necessary so they can meet the law.
How we do this is try to work with them. I think when the law was passed in 2007,
there was a lot of education that needed to be done. We sat down with the dam
owners, the Farm Bureau, and the industry to educate them of what the
requirements are and what their obligations are. That is why there was a little
delay by the time the rules got signed. We tried to provide them technical
assistance. There are certain requirements that are required. An emergency action
plan is required for high and significant dams. There is also an operation and
maintenance manual required by dam owners. We have templates made on our
website. When we did pass the law and went to the Board of Land and Natural
Resources, we provided the incentive program. For example, if you were to permit
your dam, the fees would be reduced if you did it within a certain time period.
Obviously, we want more of the money to go towards compliance of dams instead of
through a fee. To incentivize dam owners to bring their dams to compliance, we
created an incentive program to reduce their fees. Two (2) years ago, as you recall,
there was a constitutional amendment placed on the ballot to allow Special Purpose
Revenue Bonds for dam and reservoir owners. This would allow dam and reservoir
owners to be eligible for low-interest loans. Unfortunately, the vote did not pass.
We did not get fifty percent (50%) plus one (1). We are now discussing with the
Governor on whether that should be proposed again in the 2014 Session. We also
try to participate with certain critical dams on putting out gages so we can monitor
gages remotely. Obviously, our website is a good resource. We are trying to make it
more intuitive and we are updating our website, as you can see. A lot of this
information is already on our website. That is the Uniform Resource Locator (URL)
link at the top. I think it would be good to also provide that because a lot of this
information that I am talking about today is already on the website. I do not think
there is any doubt that the Ka Loko disaster and the revised law have created
heightened awareness. I think this law has put us somewhat all on notice and
reminded us that everybody needs to keep their dams safe. Dam owners need to
take responsibility; however, the State also needs to uphold its mandate to protect
the health, safety, and welfare of the people. Implementing this new, revised law
has been a challenge. It has been six (6) years since it was passed and I know from
the State's standpoint that there have been some challenges with getting money.
The State DLNR requested and received over twenty-one million dollars
($21,000,000) so far to-date to fix up some of the DLNR dams. The Dam Safety
Program recognizes these challenges. It has not been an easy process, but we try to
look at compromises, working with the dam owners to ensure that public safety can
be maintained, while also addressing the water concerns that you folks have as
well. I hope that was enough for the general overview of the program. I think now
you can ask more specifics about status and so forth from the specific dam owners.
Chair Furfaro: Thank you very much, Carty. First of all,
gentlemen, I do want to thank you for being here and giving us this update,
especially as we get ready for the Legislative Session as well. I wanted to get a
clear idea of Kaua`i on what reservoirs were temporarily closed and what have had
repair and maintenance issues that met your standard? I did not hear the
conclusion of this discussion with the Governor about moneys or grants, possibly
COUNCIL MEETING 12 NOVEMBER 6, 2013
some municipal bonds or something of that nature, being a discussion item in the
upcoming legislation. It sounds like you have talked about it, but is it or will it be?
Mr. Chang: Well, the Governor has not put together his
2014 Legislative Package yet, so I cannot say that it will be in it, but we are in
discussion and we recognize that the vote was approximately six thousand (6,000)
votes short. If we were to propose legislation to put it back on the ballot for a
constitutional amendment... you are talking about the Special Purpose Revenue
Bonds, right?
Chair Furfaro: Right.
Mr. Chang: Because the vote was pretty close, obviously
blank votes were the ones that really did— there were forty-seven thousand
(47,000) blank votes. Obviously, those are "no" votes so I cannot say that the
Governor will put it on, but we are in discussion with the Governor now to see if he
can include that in his 2014 Legislative Package.
Chair Furfaro: As revenue bonds?
Mr. Chang: Special Purpose Revenue Bonds, which need
a constitutional amendment.
Chair Furfaro: Okay. JoAnn, did you have a question at
this point?
Ms. Yukimura: Yes. Thank you.
Chair Furfaro: Then Mr. Kagawa, you have the floor next.
Ms. Yukimura: First of all, I want to thank you, Chair, for
putting this matter on the agenda. Earlier this week, Monday, the Kaua`i Planning
and Action Alliance held a very informative workshop on Kaua`i agriculture and
water, and several of the speakers pointed out how important reservoirs are to the
island's self sufficiency or self sustainability agricultural wise, and also to
withstanding the periods of drought and rain. Reservoirs are very high on the
agenda in terms of concerns, so I am glad we are having this discussion today. One
of my questions is can you give us those statistics again? You do not have page
numbers, but under your slide "Ownership of Regulated Dams"... if we could put
that back on the screen. Kaua`i County is the second column and of the total dams,
you are saying that forty-seven (47) of them are high hazard potential?
Mr. Chang: Yes, as of the date of this printing. Correct.
Ms. Yukimura: What is the date of this? 2006?
Mr. Chang: It is actually 2013.
Ms. Yukimura: 2013?
Mr. Chang: Right.
Ms. Yukimura: That is current.
COUNCIL MEETING 13 NOVEMBER 6, 2013
Mr. Chang: Pretty current, yes.
Ms. Yukimura: Of those forty-seven (47), how many are
private and how many are publicly owned?
Mr. Chang: I think out of the forty-seven (47) that next
to that, there is a State owned column and a County owned column.
Ms. Yukimura: That is right. Thank you.
Mr. Chang: If you subtract eleven (11) from forty-seven
(47), the remaining would be under "private."
Ms. Yukimura: The majority of these high hazard dams are
under private ownership?
Mr. Chang: Yes.
Ms. Yukimura: What is being done, both in the public and
private sector, to lower the hazard?
Mr. Chang: To lower the hazard?
Ms. Yukimura: Yes.
Mr. Chang: I think the Government and the private
owners are looking at bringing their dams to compliance. I think that has to deal
with the condition assessment, but if you are still going to meet the criteria for a
high hazard dam, regardless of condition; if that dam were to break whether it
complies or does not comply, it is still going to be considered a high hazard dam.
Ms. Yukimura: I see. You are saying that the label "hazard"
does not indicate that it is out of condition, so to speak, or out of compliance?
Mr. Chang: Yes.
Ms. Yukimura: It is by the nature and characteristics of the
dam that they are considered high hazard?
Mr. Chang: Yes, based on a break regardless of
condition.
Ms. Yukimura: If it was to break based on its height and
based on the amount of water it holds, et cetera, that is what defines "hazard,"
rather than its condition?
Mr. Chang: Not necessarily how much water it holds.
How much water it holds or the height determines whether the dam is regulated or
not. I went through three (3) scenarios about probable loss of human life and
probable economic loss. Those are when the hazards come into play.
Ms. Yukimura: It actually describes the area in which the
dam is. If it is an open area without residences, then it is not considered a high
hazard. If there are a lot of towns or residence homes, houses, buildings, structures,
COUNCIL MEETING 14 NOVEMBER 6, 2013
et cetera, then that is one of the things that determines its nature of hazard... its
hazardous nature or the level of hazardousness.
Mr. Chang: Hazard classification is determined by if a
dam break was to happen and the inundation zone that this dam were to touch,
property, infrastructure, or none of that is what determines classification.
Ms. Yukimura: Okay. What you are talking about is its
potential for damage to life and property?
EDWIN MATSUDA, Dam Safety Program, Civil Engineer: My name is
Edwin Matsuda with the Department of Land and Natural Resources. It is actually
a national characteristic classification that we are trying to determine that actually
Federal Emergency Management Agency (FEMA) came out with. The State has
adopted that classification. We do report back to the National Inventory of Dams
and we specify that criteria. It is solely a potential for the floodwaters within the
dam for loss of life.
Ms. Yukimura: So it is saying that if there is a break, what
kind of damage levels will it cause?
Mr. Matsuda: Correct.
Ms. Yukimura: Or does it have the potential to cause?
Mr. Matsuda: Correct.
Ms. Yukimura: I guess I am interested more in the condition
of the dams, which... help me here, but is an indication of whether the dams... what
the possibilities or the probabilities are of the dam breaking. Is that correct?
Mr. Matsuda: I think what you are asking for is what we
have on here as the condition assessments. It is on the next slide. We have it
broken down by reservoir purpose. If you look at the bottom of the total, you can get
an idea of what the condition assessments are for Statewide or for all structures.
Ms. Yukimura: Would you be able to provide us with Kaua`i
statistics?
Mr. Matsuda: I think you have that.
Mr. Chang: I think I mentioned that.
Ms. Yukimura: Yes, but it was so fast.
Mr. Chang: Of the fifty-four (54) dams; nineteen (19)
poor, eleven (11) unsatisfactory, twenty-one (21) conditionally fair, and not rated is
three (3).
Ms. Yukimura: Okay. You are saying that twenty (20) are
poor or unsatisfactory, forty (40) are fair/poor/unsatisfactory? Nineteen (19) plus
eleven (11)? Nineteen (19) poor, eleven (11) unsatisfactory, and twenty-one (21) fair?
Mr. Chang: Yes.
COUNCIL MEETING 15 NOVEMBER 6, 2013
Ms. Yukimura: So your lowest two (2) categories are poor
and unsatisfactory?
Mr. Chang: Yes.
Ms. Yukimura: And that is twenty (20) of them?
Mr. Chang: Yes.
Ms. Yukimura: Thirty (30), I am sorry.
Mr. Chang: Yes.
Ms. Yukimura: Yes, thirty (30) of them and then twenty-one
(21) are fair. Okay. Our reservoirs or dams are not in good condition?
Mr. Chang: Yes.
Ms. Yukimura: Can you tell us what is being done to put
them back in good condition?
Mr. Chang: Well, I think maybe that would be a good
opportunity, at least from some of the owners who are sitting here, to talk about the
status of theirs. The Department of Ag has some dams and the Department of Land
Division has some jurisdiction. I think they have a report to talk about what is
being done about theirs. Is it okay if I defer to them?
Chair Furfaro: I think along the line of the question asked
by Councilmember Yukimura, I think we would like to know what the challenges
are to get there. We talked about revenue bonds, other private financing
opportunities, and grants from the State as being part of the financial challenge.
What are the challenges to get them back? This might be a cartful of answers here.
Mr. Chang: I think you hit it right on the nail. The
challenges are obviously coming up at the funds to bring your dams to compliance.
I think there is also the exposure to liability that is also a concern of many of the
dam owners. To have regulated dams mean that you are liable to maintain this
dam in perpetuity. The decisions made on the fate of each individual dam is a dam
owner decision whether or not they have the money and whether or not they take on
the exposure of liability, or whatever it means. We regulate whatever activity is
done. Obviously, I think we would rather not see dams removed because from
DLNR's perspective, it helps the watersheds as recharged, but those are decisions
made by each dam owner based on whatever circumstances. Obviously, funding is
one of the big issues we have been hearing about.
Chair Furfaro: I am going to give the floor back to
Councilmember Yukimura, but I would like some narrative from you about those
challenges. You know as well as I do that very soon, we are required to give a
report in 2020 to the State on how we are going to conquer these challenges.
Without having a kind of recap of what the urgencies are to kokua these repairs, it
is kind of hard for Government at our level to help. I am going to give the floor back
to Councilwoman Yukimura, and then Councilwoman Yukimura, I want to make
sure that I recognized Mr. Kagawa next.
COUNCIL MEETING 16 NOVEMBER 6, 2013
Ms. Yukimura: Okay. I do and I do not want to take up all
the time. I think the idea of focusing on challenges is a good one. You are telling us
that the challenges are primarily, at least for both private and public owners, is
money to bring the dams into compliance that would then bring them back into
better classifications of condition.
Mr. Chang: Correct. I think that is one of the challenges.
Ms. Yukimura: Then from the fact that you, the State, or the
Governor put the revenue bonds on the ballot, you see that as an important source
of moneys to repair the dams?
Mr. Chang: I think that is one tool in the toolbox that
dam owners can access.
Ms. Yukimura: Well, if you folks feel that that was an
important source, today is the time to help us and the public understand why it is
important. My understanding of revenue bonds is that it does not take any public
moneys. I do not think the public understood that when they were voting on the
ballot issue. Also, even though it is a private dam owner's decision, there are a lot
of public benefits from keeping those dams in good condition. I will end my
questioning here, but perhaps you can address those two (2) points: how exactly a
revenue bond would work and how it could be helpful to putting the dams in good
condition. Also, what the public benefit is that is making all of us here today talk
about this? Thank you.
Chair Furfaro: Thank you, Councilwoman. Mr. Kagawa,
you have the floor.
Ms. Yukimura: Could we give them a chance to do that right
now?
Chair Furfaro: I am hoping you heard that my question was
not just about the financial issue. I said to you, "What are the challenges and the
total piece?" I am hoping that you are going to respond to us with some narrative.
Ms. Yukimura: You mean after this session?
Chair Furfaro: Yes.
Ms. Yukimura: As a follow-up, that would be helpful, too.
Chair, could they just briefly address those two (2) points today?
Chair Furfaro: Point well-taken.
Ms. Yukimura: Can you address how the revenue bonds
work and why it is important to dam safety? The other one, if you have time, is why
dams are important to the public.
Mr. Chang: Okay. Well, before a Special Purpose
Revenue Bond can even go on the ballot, the Legislature has to ensure that it serves
the public purpose, first of all. To even be eligible for a Special Purpose Revenue
Bond... public schools, hospitals, and so forth. I think important Ag lands are
COUNCIL MEETING 17 NOVEMBER 6, 2013
eligible. We are trying to justify— I believe that in 2012, the Legislature agreed
that the dams do serve a public purpose, so that is why is was past and put on the
ballot. Unfortunately, the populous vote did not meet that. It is important to the
public to understand that for a Special Purpose Revenue Bond, it is basically using
the credit worthiness of the State to issue bonds, which people like you and I can
buy these bonds. It is not State taxpayers money, but through a bond sale. Those
moneys are given to eligible dam owners... not every dam owner may qualify. It is
like going for a loan because you need to show financial wherewithal and show
revenue to make sure you can pay the bonds back with interest. I am not saying it
is the silver bullet to solve everybody's problem, but for certain dam owners who do
have the financial wherewithal, they may be eligible. There is a vetting process
that is through our budget and finance that they need to apply for a loan, and if
there is an agreement and payment schedules, and so forth. Whether it is going to
help you as a dam owner or you as a dam owner, that is yet to be determined
because those are vetted through the process. The first step is to try and get on the
ballot, and then make sure that people understand that there is a public benefit to
this and it is not the State stepping in to take care of a private responsibility. The
benefits I mentioned earlier— obviously, irrigation... number one, flood control.
Without dams, you may not have the proper flood control. There is water supply,
habitat, and potential renewable energy. As you know from DLNR's perspective,
there is the watershed initiative also; recharging our watersheds to ensure water
supply for future generations. Dams are critical and a lot of them are in the upper
watershed. If we have dry dams, obviously, the recharge is not there so I think to
answer your question on public benefits, I think that pretty much explains that. I
think we are going to try to educate people on that... those public benefits as well. I
hope I answered your question as far as my understanding of how Special Purpose
Revenue Bonds work and the public benefits.
Ms. Yukimura: Thank you.
Chair Furfaro: On that note, I have Mr. Kagawa,
Mr. Bynum, and then Mr. Rapozo. Mr. Kagawa, you have the floor.
Mr. Kagawa: Thank you, Mr. Chair. We have the second
most amount of dams on this island with Maui having the most. Is there a reason
why Oahu and Hawai`i County does not have as much? These dams are all pretty
much built for the farming, right? For the agriculture, way back when? They are
pretty much old dams. We have had sugar in Hawai`i in the 1800's, from that early
on, right? Is there a reason why Honolulu and Hawaii Island does not have that
much? Have they closed up some of their dams? What is the reason for the
disparity?
JAMES NAKATANI, Agribusiness Development Corporation, Executive
Director: Jimmy Nakatani, Agribusiness Development
Corporation, which is part of the Department of Agriculture. I think for Hawai`i
Island, if you look at some of the practices that they have there and even here... if
you look at Kalepa, much of that was unirrigated. In other words, they had enough
rainfall. Like the Hamakua Coast, they did not need too many reservoirs because
the upper side was rainfall and they put the Hamakua Ditch, so they had some
reservoirs but not many. They would just feed off the ditch. I think if you look at
O`ahu, and I am not sure but what I suspect happened is that because of the good
growing areas in the central plains, a lot of those small reservoirs were filled in for
development. If you look at the old maps of central O`ahu, it started from "Aiea
sugarcane and all the way to `Ewa. When those operations ceased to exist, then
COUNCIL MEETING 18 NOVEMBER 6, 2013
they took away some of that. Some of it is cost effective. They had smaller
reservoirs but they used to pump a lot of water with the economics. These were not
really huge reservoirs and I think that is kind of the explanation why we do not
have too much on Oahu and Hawai`i Island.
Mr. Kagawa: I guess this leads me on to my next question.
How many of these reservoirs on Kaua`i, the forty-seven (47) dangerous ones that
we have; how much of those does our agricultural operations use? How much does
our community use? How much of the forty-seven (47) is of no use? It just sits
there? It waits to be a disaster when it is not maintained? I cannot imagine that
all forty-seven (47) are still being used.
Mr. Nakatani: If you look at this yellow sheet that I passed
out, unfortunately it only pertains to Agro Development reservoirs. What happens
is that because the reservoirs are divided... I will give you an example. Some still
belongs to DLNR and some of it is DHHL. I know some of it is not functional right
now, but they exist and a lot of it is in private hands. I would think that the private
hands, if it was too costly, they would somehow get maybe deregulated. Just to give
you a point, deregulation does not mean that it is cheap to just get rid it.
Deregulating a dam, and Carty correct me, may cost quite a bit of money to
deregulate it. That is maybe one of the issues that we kind of look at, right? The
other thing that we need to remember about a reservoir is that is really an asset to
agriculture, so you need to really think carefully before you cease to take it away or
deregulate it.
Mr. Kagawa: I guess I understand. It is a give and take.
If you cannot foresee the use coming at any time relatively soon, then you need to
seriously think about whether to just let it continue to sit there? I think Ka Loko in
size... was that relatively small compared to our dams here? Was it somewhere in
the middle? It is an upper tier? It was not being used, right?
Mr. Matsuda: It still serves some farmers.
Mr. Kagawa: You are not going to let a person with a size
six (6) feet wear a size thirteen (13). Is that dam much too big for the amount that
it serves? I guess that is where I am going. Regulating could mean just scaling it
down.
Mr. Matsuda: That is an option. Back when the sugar
plantations were developed and the reservoirs were developed for that purpose, the
type of irrigation that they did was very heavily water demand. Now, most of the
farmers tend to use other types of drip irrigation or other things that do not require
as much. Even the crops that they grow are not as in need of that much water. A
lot of these structures could be potentially reduced. Our program does not
necessarily look at equating what the potential Ag distribution area is to what is
being stored. We just look at the safety of the structure itself. We have not really
delved into that.
Mr. Nakatani: With agriculture, we have looked at that. In
some cases, you look at maybe making it bigger, but usually it is paring it down.
We kind of look at more efficiency, right? Right now, the dam requires that it is
lined. Prior to that, it was earthen dams so you have a lot of silt. When you are
redoing a dam, I think you look at efficiency. You can have a smaller dam size-wise
and measurement-wise. If you say fifteen million (15,000,000) gallons, it has fifteen
COUNCIL MEETING 19 NOVEMBER 6, 2013
million (15,000,000) gallons versus a big dam that is filled up. Right now, we have a
lot of situations with the older dams that even though they consider it like
regulated above twenty-five million (25,000,000) gallons or something, it probably
only holds fifteen (15). Those are the kinds of things that we are going through and
hopefully when we redo the whole system, we make it more efficient as well as
safer.
Mr. Kagawa: I know it is not an easy job. Like I said,
when you are Monday morning quarterback coach, it is easy to say what should be
done. I think where all of us are coming from is that we remember the Ka Loko
Dam breakage. When you saw the amount of land and trees that were just cleared
out, it is something that we hope never happens again. It is scary to see the
numbers that we have fifty-four (54)— forty-seven (47) highly dangerous dams out
there. Not maybe needing them to be so large, I think is my concern. I know you
have a tough job. Also preserving for the future, of course, we want to have those
options for more Ag in the future that will perhaps use as much water as was in the
past, but I think it is a balance. I think we have always said when it comes to the
public health/safety versus money, I think we would choose public health and
safety.
Mr. Nakatani: Absolutely.
Mr. Kagawa: I am done. Thank you.
Chair Furfaro: Mr. Bynum, you have the floor.
Mr. Bynum: I want to thank you all for being here very
much. I appreciate your work and this overview. I am going ask some big picture
questions and then maybe a few specifics about local dams that we have seen
changes to. Some of these questions will be for the benefit of the general public that
is listening. It is kind of like Ka Loko really triggered the State to pour more
resources into dam safety. Is that correct? Mr. Matsuda, how long have you been in
your position as a Dam Safety Inspector?
Mr. Matsuda: I have been with the State for about fourteen
(14) to fifteen (15) years.
Mr. Bynum: Thank you for your service. I just wondered
if you could give me a brief overview of what resources have been for dam safety
over that period. My impression was that the State was inadequately monitoring
its dams at best and not monitoring them at all at worst prior to 2006. I would just
like to get a sense over history. Has the resources available to you to do your job
diminished or increased prior to Ka Loko? Was there a historic diminishing of
resources as is common in many DLNR places in the 70's, 80's, and 90's? Could you
give me an overview?
Mr. Matsuda: Sure. When I started with the Department,
there were maybe three (3) of us in the section and it was divided between... we
also managed the National Flood Insurance Program, as well as the Dam Safety
Program, and the General Flood Control Plan for the State. I was hired
predominantly for dam safety, as well as another program that is entirely separate
from this. We had maybe about one and a half(1.5) persons on dam safety and our
funding sources have steadily decreased. After being hired, I think we went down
to having an operational budget of something around three thousand dollars
COUNCIL MEETING 20 NOVEMBER 6, 2013
($3,000) a year— I forget what it was, but it was pretty low. That was during the
period when everybody was doing budget cuts, not just our program but throughout
the State. We did build ourselves back up prior to the break, and then after the
break, we now have about three and a half (3.5) full-time employees specifically for
dam safety. We have three (3) Engineers that are dedicated to dam safety in
addition to myself, so we have three and a half(3.5).
Mr. Bynum: It would not be an overly harsh judgment to
say that the State basically was not monitoring dam safety or doing very little prior
to 2006?
Mr. Matsuda: As you can see from the other slides that
kind of talk about where the dams are, our Office is located on O`ahu and the
majority of the dams are on Kaua`i and Maui so it does require travel to these other
islands. We were using national grants to help assist us in funding these
inspections. Unfortunately, a lot of the records that we had inherited in were not
totally updated, so just even finding owners and the structures is a challenge
because these are not off of the main street; they are up in the watershed. We have
had to work with owners in finding structures. There has been a lot of owners on
O`ahu that have had... there is one owner who has owned dams on their property,
but it has just been so overgrown that it may take us a couple of times in the
beginning before we could even find it.
Mr. Bynum: So the status in 2006 was that the State did
not even know who the owners of the dams were? They were not sure where all the
dams were and whose jurisdiction they were under?
Mr. Matsuda: We had the majority of them. There was a
handful that were out there that with the advent of Geographic Information
Systems (GIS) and the Tax Map Keys (TMK) getting a lot better, we were able to
really identify a lot more of these. Even if we knew where they were, some of these
owners, because they had been in abandoned state and not utilized them and just
inherited the lands from the plantation companies, they did not realize that these
structures were on their properties. There has been a lot of education that we have
had to do, as well as research.
Mr. Bynum: We are in a lot better shape today than we
were in 2006?
Mr. Matsuda: Yes.
Mr. Bynum: I appreciate that work, but I also hear in
your testimony that you do not have adequate resources to give us assurances that
everything is okay and that the work is done. It was 2006 and now it is 2013, and
we still have a lot of work to do to bring these dams to a safe condition that you
would feel comfortable with, Mr. Matsuda. Correct?
Mr. Matsuda: Right. The standard that we utilize is pretty
much a national standard of what a dam should look like. I would say the
equivalent of a golf course water feature is what our ideal would be where we could
walk up to the structure and easily visually inspect and see if there are deficiencies
out there. That is not the case we have for the majority of these. As Carty had
talked about, on this slide, the majority of our structures were built in the early
1900's and they were built in support of the plantation companies. When the
COUNCIL MEETING 21 NOVEMBER 6, 2013
plantations were here, there had a lot of labor, the structures were being utilized,
and were visited on a daily basis. They had a lot of labor to actually keep these
structures maintained. As the plantations started to phase out, there was not a
definite use and there was not resources allocated for maintenance and operation of
these structures. A lot of them have either gone into a state of abandonment or just
been overgrown. One of the things that we do not like to see on embankment
structures is large trees and high vegetation. That has proven to cause some
failures on the mainland. It also just makes inspecting the structures very difficult
not only for ourselves, but for the operators themselves to maintain and operate
these structures. They cannot visually see if there is a problem developing on their
property.
Mr. Bynum: May I move on?
Mr. Matsuda: Sure.
Mr. Bynum: You are being very thorough and I do not
want to belabor, but I have a couple of other big picture questions. Right now today,
what dam on Kaua`i concerns you the most? What needs the most attention right
now, today?
Mr. Matsuda: There are several structures that are on our
list that we are watching. Twin Reservoir is one. Ka Loko is also on our list of
structures that we continue to monitor. Upper and lower Kapahi Reservoirs are
others. There are several. We do monitor them. What we did after 2006 was we
had received some funding to do phase one investigations throughout the State, so
we hired consultants to do those. It was a baseline investigation. We provided all
of those recommendations to the owners to identify what the deficiencies are at
their structures, and that is predominantly what the condition assessments that we
have on here are based off of.
Mr. Bynum: Can I ask a couple of specific questions?
Those of us who live on the east side have seen a lot of work in the Wailua
Reservoir. Who did that work?
Mr. Matsuda: That was Land Division.
IAN HIROKAWA, DLNR Land Division, Project Development Specialist:
My name is Ian Hirokawa and I am with the DLNR Land Division. Yes, the Land
Division conducted the work for that.
Mr. Bynum: This was a State project?
Mr. Hirokawa: Yes, it was a State project.
Mr. Bynum: There was an awful lot of rock moved in
there. Where was that rock quarried and where did it come from?
Mr. Hirokawa: I will have to follow-up with the contractor
for that.
Mr. Bynum: Can you follow-up later?
Mr. Hirokawa: Sure.
COUNCIL MEETING 22 NOVEMBER 6, 2013
Mr. Bynum: I would appreciate it. Also, I think for either
the lower and upper Kapahi Reservoirs, one of them is drained right now and there
is a County road on it. Am I talking about the right one? What are the plans for
that going forward? Is that going to be abandoned?
Mr. Hirokawa: That sounds like upper Kapahi. Currently,
it is a two (2) phased project. We are looking at reaching the current structure and
basically taking that structure out of service. We are aware that with the east
Kaua`i water users, they are concerned about their source of water, so the second
phase is to build a new structure upstream of that structure.
Mr. Bynum: In all of your discussions, do you discuss
these issues with the local fire departments that rely on these reservoirs for
firefighting?
Mr. Hirokawa: Well, we do work with the County through
the Public Works Division. We are engaging the County on this and they are also
co-owners of both upper and lower Kapahi facilities. We have been engaging them
throughout this process.
Mr. Bynum: I think I have two (2) more questions for
whomever. It is kind of like I heard you talk about dam owners having these
options and choices. If they own the dam, they are liable for it. We have clarified
that since 2006, right? These owners know what their liability is and their
responsibilities are. Is that correct? If I own a dam, there are issues if I keep it in
service. I have to make sure it is safe, but taking it out of service can cost a lot of
money, too, right?
Mr. Chang: Not, as much as rehabbing it, but yes it does
cost money to alter it.
Mr. Bynum: There is this public purpose that you have
talked about like recharging the water and fire safety. What if private owners want
to decommission these dams and hurt that public interest? Does the State or the
County have any authority to in the big picture? Is there that analysis happening?
What do we have to keep intact to adequately serve that public purpose? Do we
have any authority about whether a landowner keeps or does not keep their dam?
Mr. Chang: Authority under the law?
Mr. Bynum: Yes.
Mr. Chang: I do not believe so, but I think to answer
your question, we are moving in a direction to assist owners to make the right
decision. It is still a landowner or dam owner decision, so we are trying to provide
tools to these landowners so they can better have the resources they need to make a
decision, whether removal or rehabilitation is an option. I think that is
Government's role, which is to provide the tools and educate them, and not
necessarily take over a dam for purposes of ownership. Their role is to provide the
tools to help them comply with the law. I think I mentioned some of the steps that
we are talking from State's perspective. Special Purpose Revenue Bonds are one
tool that can assist dam owners to make an educated decision.
COUNCIL MEETING 23 NOVEMBER 6, 2013
Mr. Bynum: I want to ask one last question and I want to
make sure that none of you perceive this as criticism of your work because I know
all of you and the roles that you play would have loved to resolve more of these
issues sooner. Is that fair to say? From my perspective, it sounds like the State
was asleep at the wheel on these safety issues and many others. A tragedy got
everybody's attention and much progress has happened, especially about
identifying, categorizing, and defining the liabilities and responsibilities. The
mitigation work is not complete. Twelve (12) to thirteen (13) years later, should the
public not be pretty unhappy that the State has not come further to resolve these
safety issues in the time since Ka Loko?
Mr. Chang: I think that is a difficult question because
yes and I think it goes back to the "challenges." I want to address your first
question about being asleep at the wheel. From the 1987 Dam Safety Law, whether
the State fell asleep, it was still the dam owners' responsibility to maintain their
dams— always. Whether it was 1987 or 2007, it was always the dam owner's
responsibility to maintain their dam. It is our role to ensure that it is properly
regulated from a regulatory standpoint, but it was not the State's responsibility to
make sure that the dams need compliance. We were regulators, so it still falls
under the...
Mr. Bynum: I understand that answer from a legal
perspective. From a bigger perspective, at least at the elected official level, it is our
responsibility at the State or County level to protect the health and safety of our
citizens. I very much appreciate this response. I know you guys are doing a great
job with the resources that you have. If we can help increase those resources for
you, please let us know.
Mr. Nakatani: If I can just make this comment? I am
speaking mainly for the Department of Agriculture, but I think we have had
financial support from the Administration, but it is a matter that it just takes time
to make these changes. You do not just go out and say, "I want to drain a dam and
fix it." Engineering and all of that needs to make sure that is all happening. We
have a backlog; that is true, but I think we have been pretty proficient in looking at
all the dams. (Inaudible) and (Inaudible) sends this bill over every year saying the
violation and dam safety. Even from his Department, he is sending notices to other
departments saying that "you are out of compliance and you need to comply. Look
at these dams." Their inspectors are constantly looking at all of our operations. It
might not be mitigated totally, but I think for the most part, they are doing a good
job at keeping this system safe.
Mr. Bynum: I do not disagree. Obviously, we are in much
better shape than we were previously. I thank you for all of those efforts.
Chair Furfaro: Mr. Rapozo, you have the floor.
Mr. Rapozo: Thank you, Mr. Chair. Thank you for being
here. I have a couple of questions. First of all, how many inspectors did you say
you have? Three and a half(3.5)?
Mr. Matsuda: Right now, we have three (3) Engineers in
addition to myself.
Mr. Rapozo: So you are the half?
COUNCIL MEETING 24 NOVEMBER 6, 2013
Mr. Matsuda: Yes.
Mr. Rapozo: Those three and a half (3.5) people are
obligated to inspect one hundred thirty-eight (138) dams statewide?
Mr. Matsuda: We do inspect, correct.
Mr. Rapozo: You guys get to inspect one hundred
thirty-eight (138) dams statewide with 3.5 people?
Mr. Matsuda: We do not inspect all of them every year. If
there is a need to go out, we will inspect them. On our rules, we have to inspect
these structures once every five (5) years. Right now, we are on a two (2) year cycle,
so in between eighteen (18) months and two (2) years, we will get to the structures.
If not, sooner. That is the normal safety inspections and that is in addition to
construction inspections. Right now, we do have a lot of construction going on the
structures, so we do monitor the construction work, as well as looking at other
questions that some owners may have for us. We do other informal inspections that
we do not account for in that part, but we are about seventy (70) to eighty (80)
inspections per year.
Mr. Rapozo: Okay. What is the State's authority as far as
dam owners that simply cannot comply and they do not have the resources? My
concern is really targeted for Kaua`i; our thirty (30) poor or unsatisfactory dams.
What happens if a dam owner simply cannot afford? What does the State do? What
are the ramifications for that?
Mr. Chang: Enforcement?
Mr. Rapozo: Yes, enforcement. I know it is expensive. I
know, like you said, some of these landowners purchase land not even knowing that
they had that responsibility or had a dam on there. All of a sudden, they are being
told, "Hey, you have got to maintain this dam." What happens if they do not have
the resources? What does State do?
Mr. Chang: Obviously, enforcement is our last resort.
Instead of getting money through penalties or fines, we would rather them put the
money towards improvement. We do have the authority...
Mr. Rapozo: I understand that. I hear that from our
Planning Department all of the time, but people die with a breach. Being nice
about it is one thing, but there comes a point where we have to say— I guess my
concern is not so much the fines because they might have to pay you a few thousand
bucks and that does not resolve the issue. My point is does the State have resources
to go in and fix it, and then you bill them or whatever? I think my concern is
getting it fixed more than waiting for them to do it because we do not want another
incident like Ka Loko.
Mr. Matsuda: The condition assessments that we have on
here were based off of that 2006-2007 consultant inspection reports that we had.
Those classifications are not always routinely updated on our inspections that we go
out on. It may not reflect some of the improvements that owners have conducted.
We understand that those improvements take a little bit of time, so what we have
COUNCIL MEETING 25 NOVEMBER 6, 2013
tried to do was work with the owners because we have heard from the Farm
Bureau, too, that if we come down really hard on them, the only alternative would
be to just breach these structures to remove any risk at all. There is a balance that
can be worked because from our standpoint, we are still going to classify them as
poor if their spillways may not be at sufficient capacity for what we deem it should
be. When you have a structure that may have been built back in the 1900's, nobody
was downstream, it was a low hazard structure, and now you have a community
downstream and a high hazard structure, their spillway size needs to increase
tenfold to meet our regulations; somewhere around there. I am just giving a scale of
factors.
Mr. Rapozo: Yes.
Mr. Matsuda: It is difficult for them to meet that right
away without going through their funding process and doing their design work to
see what kind of spillway would need to be put in. It does not mean that we are just
letting them ride free. We do put water restrictions on people as far as what can be
done, and there are some reservoirs that we have told the owners that "you are not
allowed to put any water in here right now until you resolve these issues." We have
had that. We are working right now through another authority that we have which
is called "Certificate of Approval to Impound." It is kind of like an operational
permit. We are working with the owners and what they will do on this one is
identify a long range plan to us as far as what they are going to be doing specifically
on their structure to improve it and get their structures back in compliance so that
down the road, we will not have the situation where everybody is behind. In the
interim process, we will be working with them as far as operational restrictions or
other types of restrictions to ensure that the risk to the public is reduced.
Mr. Rapozo: I guess that was part of the question. You
folks have the ability to restrict the volume of water in a specific reservoir like the
example you gave. Now, we have a community downstream so you have the
authority to restrict the volume of that specific reservoir until they can get it up to
standard?
Mr. Matsuda: Right.
Mr. Rapozo: Is that commonly done?
Mr. Matsuda: We had that on a couple of structures on
O`ahu like Lake Wilson, Wahiawa Dam...
Mr. Rapozo: I do not mean to be rude, but I really do not
have interest in Honolulu.
Mr. Matsuda: Okay.
Mr. Rapozo: May you just focus on Kaua`i?
Mr. Matsuda: Kaua`i— Field 2 Kealia Reservoir on the east
side. It had a lot of seepage. We worked with the owner to actually maintain that
structure empty and they have been complying with that. For Twin Reservoir, I
think we had water restrictions on them and they choose to operate that structure
empty, which is entirely up to the owners as well. Until they can resolve the issues
that they have with their spillways there, they have chosen to operate that way.
COUNCIL MEETING 26 NOVEMBER 6, 2013
We do try to work with the owners and see what can be done. Upper Kapahi, which
is currently under construction— hopefully the construction would have resolved a
lot of the issues that were plaguing the structure, but unfortunately, it got delayed.
What we did do is put a restriction on them to not store water and install a water
level monitoring gage that is Realtime and hooked up to the National Weather
Service so if it does rain and fills up to a certain level, they have a plan of action
that they actually go out and inspect and put somebody out there. If need be, they
can breach the structure. Another part that we do have is a requirement of the
original law and it is in this current revision. It is an Emergency Action Plan. We
require that owners of high and significant hazard potential structures have this
Emergency Action Plan. Should there be an incident at a facility, they notify people
so that evacuations can be set forth and hopefully no lives will be lost. That was not
in place for Ka Loko. Ka Loko, at that time, was deemed to be a low hazard
structure.
Mr. Rapozo: Unsatisfactory is the lowest condition or the
worst condition in your scale? You have satisfactory, fair, poor, and unsatisfactory.
Mr. Chang: Poor is below.
Mr. Rapozo: Okay. Poor is the worst?
Mr. Chang: Unsatisfactory is the worst.
Mr. Rapozo: Okay.
Mr. Chang: Then conditionally fair.
Mr. Rapozo: On Kaua`i, we have eleven (11)
unsatisfactory dams. Are they a majority of spillway issues? What is the most
common issue? What makes these eleven (11) unsatisfactory?
Mr. Matsuda: In general, poor and unsatisfactory would be
predominantly a spillway issue, outlet issue, or a slope stability issue.
Mr. Rapozo: For Kaua`i, for the eleven (11); do we have an
idea of what... I do not need the breakdown, but is it in majority spillway?
Mr. Matsuda: It is probably majority spillway and outlet.
Some of these structures have either a broken valve or it may have sedimented in.
Some of these structures are in abandoned state, so they may not have an outlet.
We deem it as an unsatisfactory condition, but in reality, the risk is relatively low
because the owners actually do not store any water in it. It is still on our books.
Until they actually remove the facility from any ability to withhold water, it is still
on our inventory as dam structures.
Mr. Rapozo: As far as the use, you folks do not get
involved in the use of that water?
Mr. Chang: Not the Dam Safety Program.
Mr. Rapozo: For example for Ka Loko, they have been
using that reservoir as a little lake for water skiing and jet skiing. The purpose of
that was not to irrigate... maybe the secondary use, but the primary use was... that
COUNCIL MEETING 27 NOVEMBER 6, 2013
is just in my independent investigation. Do we monitor those uses as well? I do not
know if we even have that right to require that water to be used for agriculture or
allow these developers to use reservoirs and dams for recreation/personal?
Mr. Chang: We do not regulate the specific use of it. We
regulate the integrity of the structure. That is the purview of the Dam Safety
Program from a safety standpoint. If you are going to use certain structures for
recreation, fishing, or whatever— for example, on O`ahu, Lake Wilson; they made
need some type of permit to use it. As far as the safety portion, we are concerned
with the integrity of the structure.
Mr. Rapozo: Okay. I have one final question.
Condemnation is always an option for the State if some landowner really just
cannot because they do not have the resources, the Special Revenue Bonds do not
pan out, and they do not qualify because they have to qualify. The Special Purpose
Revenue Bonds— the State has very little liability unless they default, and then the
State becomes... but I understand. I think there is a definite value, but if the
landowner does not qualify, then it is useless to them. At that point, is the State in
a position where they could condemn the reservoir? It has to be a reservoir that has
been deemed to satisfy a huge public purpose.
Mr. Nakatani: I do not think we have ever came across that
situation, but if agriculture was highly dependent on that then you could maybe
lease the reservoir, lease the land, or take over the reservoir. We have cases on
O`ahu where the land actually belongs to a private entity. We own the reservoir
and take up the liability, but the system belongs to us. I think it goes by case-by-
case basis.
Mr. Rapozo: Yes, obviously.
Mr. Nakatani: If it is really something that the State really
needs, we could do friendly condemnation or in the case of essentiality where you
need the water, I think the State could step in as a public/private partnership
because it benefits all.
Mr. Rapozo: We have never gotten to that point?
Mr. Nakatani: I do not think we have gotten to that point. I
know on O`ahu with the Waiahole Ditch, we have gotten private reservoirs just to
make the system more efficient. You have a State irrigation system that has
private entities entering to make the system better, which I think is the best way to
go because it puts some risk on the landowner itself or the farming entity. That is
an interesting question. I think it could be done. It is not out of the question.
Mr. Rapozo: Thank you.
Chair Furfaro: Mr. Hooser, you have the floor now.
Mr. Hooser: I just have a few questions. Thank you very
much. It has been very informative. My question is kind of a follow-up to
Councilmember Rapozo's in terms of... I know this is mostly dam safety, but when
inspectors are there, what about the issue of— water is a public trust kind of thing;
resource. Steam diversions and the wasting of water— do inspectors report that if
they see that type of thing? How is that handled? We do get occasional reports
COUNCIL MEETING 28 NOVEMBER 6, 2013
from people in the community saying, "My stream dried up. What is happening up
there at the dam?" Is someone doing that kind of thing? I guess the eyes and ears I
would imagine would be DLNR.
Mr. Chang: From the Dam Safety Program, you may be
referring to the Water Commission who has separate authority under the water
code to regulate diversions or improvements within streams. They have a process,
so that might be an appropriate agency to approach if there is an issue with losing
streams, gaining streams, and things like that. That would be our Commission on
Water Resource Management.
Mr. Hooser: When you are inspecting dams, do you report
if you see stream diversions?
Mr. Chang: Well, I think you brought up the thing about
seepage. I think if you saw some obviously leakage or seepage coming from the dam
and if it is pertaining to some type of integrity issue, we would note it down. When
it comes to diversions upstream, I think that is a separate authority that is
regulated.
Mr. Matsuda: The only thing that may crossover is that we
do try to identify the inflows into the reservoir just to get an idea of what the
potential inflow volume could be. We do not go and actually verify if they have a
legal diversion, a registered diversion, or not. That is a separate entity within our
Department, and they do send out their own inspectors to verify that.
Mr. Hooser: Okay. What is the name of that entity?
Mr. Matsuda: The Commission on Water Resource
Management.
Mr. Hooser: Okay. You must communicate?
Mr. Matsuda: We do work on some issues where it is
known, but we have not married the two (2) databases together. We have not had
any run-ins of any issues at that point. When complaints come in, we do share
information as well.
Mr. Hooser: Okay. Thank you very much.
Chair Furfaro: Mr. Bynum, you have the floor.
Mr. Bynum: I just have a follow-up to that. For your
information, prior to Ka Loko, citizens in Moloa`a said that they noticed changes in
their stream and believed there were inappropriate stream diversions and diverting
water from the Moloa`a Watershed to the Ka Loko Dam. The Department of
Conservation and Resource Enforcement (DOCARE) came to Kaua`i and I met with
them. I worked for the Mayor at the time. They basically said, "We do not have the
authority to go up there and inspect. It is private property." They did not inspect
and later the dam broke. I want to know from your Department now that you are
doing inspections, have you had difficulty accessing private property to do the dam
inspection? What is your process to do that? You are entering private property, so I
assume that you have some process.
COUNCIL MEETING 29 NOVEMBER 6, 2013
Mr. Matsuda: Under our Statute, we have the authority to
enter a private property for inspections. Even with that authority, we still do notify
the owners and we request that they are present with us when we do our
inspections. Again, these structures are not just off the side of the road. Most of
the time, they are not just off the side of the road; they are very well in properties,
crossing through several paddocks and things. People are very concerned with
strangers on their property as well. We do work with the owners on that. For the
most part, we have not had issues after Ka Loko. I think it has been more of a
scheduling issue.
Mr. Bynum: It is your practice before entering private
property to inform the landowner?
Mr. Matsuda: Yes. Unless it is an emergency, which we
have not had to test that yet, we do not just enter the property.
Mr. Bynum: Thank you very much.
Chair Furfaro: Councilmember Yukimura.
Ms. Yukimura: Yes, thank you. Back to your revenue bonds,
you said that these low-interest loans out of the revenue bonds would be only
available to eligible owners. I presume to be "eligible," you have to show a revenue
source because these have to be paid back, right? It does not matter where the
revenue source is, just that they have a revenue generating capacity?
Mr. Chang: The agreement between the landowner and
the State is going to be through our Budget and Finance Department, so for the
criteria on their qualifications, I would defer to them on what they look for as far as
stream of revenue or a source.
Ms. Yukimura: Because these bonds have to be paid back...
we are borrowing money, they have to have a revenue source. It is not a public
revenue source, so that is why public moneys are not involved, but it is a Special
Revenue Bond so it has to be paid back, right? I am just wondering if small owners
of reservoirs are in a bind if they do not have a lot of income coming back.
Mr. Chang: They may not be able to qualify. You are
right.
Ms. Yukimura: Right. Okay. There has been a lot of talk
about how dams have different functions. Councilmember Hooser brought up the
issue of water diversions and so forth, which is under another agency. In terms of
coordination, and Mr. Nakatani you may be able to address this, but if reservoirs
are decommissioned because owners cannot afford to continue them as a reservoir,
but they are a source of water for potential agriculture either now or in the future,
who is making that analysis? Who gives permission to decommission? Or to even
say "bulldoze the reservoir into nonexistence?"
Mr. Nakatani: I think the condition or whether you bulldoze
a reservoir is really up to the landowner.
Ms. Yukimura: It is totally up to the landowner?
COUNCIL MEETING 30 NOVEMBER 6, 2013
Mr. Nakatani: That is correct. We do not have any
jurisdiction on that. They go through a process of decommissioning a reservoir.
None of us have that authority.
Ms. Yukimura: I think that was part of the concern that was
raised in this Kaua`i Planning and Action Alliance workshop this past week, and it
relates to these Important Agricultural Lands (IAL). Say the lands around the
reservoir are excellent lands for agriculture. We may not need it now, but in
planning, we are not just talking about no; we are talking about the future, whether
it is for food crops, energy crops, or even fiber crops. Do we allow these dams, which
are irreplaceable essentially... as one of you were telling me earlier before we
started this session, they are remarkable resources in terms of water. Especially if
global warming is bringing these issues of more frequent droughts, they are very
important. If we were to rebuild or replace them, we do not have the resources to do
that. They were built in a time of really low labor, costs, and so forth. How do we
protect this resource?
Mr. Nakatani: I think that is a very good question and I
think that affects the whole State. I really think that is where the County
government and the State come in. That is a policy question on how you plan your
agricultural lands. We talked about incentives like giving landowners incentives on
how to restore their irrigation systems and ditches. I know on Kaua`i— I do not
know this for a fact, but I would suspect that they are land-rich/cash-poor. How do
you do that? That is the exercise that we need to go through, and how we do those
incentives and how do we provide those incentives to keep those lands in agriculture
now and for the future?
Ms. Yukimura: ADC has a special mandate on that; the
Agribusiness Development Corporation. This yellow sheet shows that you have a
lot of dams on Kauai in your jurisdiction. Does ADC have a plan for keeping and
protecting those reservoirs?
Mr. Nakatani: Yes we do...
Chair Furfaro: Excuse me. We are drifting a little bit from
the subject, but the topics that Councilmember Yukimura is mentioning are as
extremely important to us, and they are one the reasons we wanted to hear from
you today, but ADC is not on our agenda today. Our water needs and our reservoirs
are extremely important, so I am going to ask you to focus on those kinds of
questions without going into another subtopic of a political subdivision that is part
of the State of Hawai`i.
Ms. Yukimura: Mr. Chair, I hear what you are saying,
although, Mr. Nakatani is here as the Executive Director of ADC. Is that correct?
Mr. Nakatani: That is correct.
Ms. Yukimura: May I suggest that...
Chair Furfaro: I do not think you heard you. I am giving
you some liberties, but let us not focus on ADC and that whole issue. You have
some liberties from me.
COUNCIL MEETING 31 NOVEMBER 6, 2013
Ms. Yukimura: Okay. May I focus on the dams or reservoirs
within ADC's jurisdiction?
Chair Furfaro: Absolutely, that is what is on the agenda.
Ms. Yukimura: Okay. Thank you. You were telling me
about this plan that you have to protect the reservoir resources under ADC's
jurisdiction on Kaua`i?
Mr. Nakatani: That is correct. I think if you look at the
sheets... the bottom three (3), upper and lower Aahoaka, those are in the Kalepa
right above us. Those are something that we want to preserve and make sure that
we have water. Then when you go to Mana, Kitano, and part of Pu`u Lua, that is an
important water source for Kekaha.
Ms. Yukimura: Can we put this on our screen? The ones
under your jurisdiction on Kaua`i are the Mana Reservoir, Kitano Reservoir, Pu`u
Lua...
Mr. Nakatani: Not yet.
Ms. Yukimura: Which ones....
Mr. Nakatani: Those are the ones we are working on. Those
are the reservoirs that we used.
Ms. Yukimura: Okay. Those are on the west side. There are
three (3) west Kaua`i reservoirs and three (3) east Kaua`i reservoirs.
Mr. Nakatani: That is correct.
Ms. Yukimura: We are seeing that the dam names are on
the left hand side and the top two (2) are on O`ahu but the three (3) below that;
Mana, Kitano, and Pu`u Lua are west Kaua`i. Upper Aahoaka and Field 21 on the
east side?
Mr. Nakatani: That is correct.
Ms. Yukimura: They are all under your jurisdiction. To the
far right, you have the current status which is... that is okay, Yvette. We cannot
get all of this. If necessary, Mr. Nakatani can tell us what it is. Were you trying to
explain to us what is being done to each dam?
Mr. Nakatani: Sure. I think with Mana Reservoir, we are
looking at design phase to improve it and that is ongoing. Kitano has been
abandoned for a number of years, so we would like to breach that dam because it is
not being used at the present time. Pu`u Lua is not under our jurisdiction. We
share the water. It is an important water source for us, so it is listed. Upper and
lower Aahoaka— the upper is being worked on and we have not looked at the lower,
but that is a water source. I believe the Field 21 project was just finished.
Everything is being complied with. I think DHHL is getting water as well as
DLNR... Forestry? Parks?
COUNCIL MEETING 32 NOVEMBER 6, 2013
Ms. Yukimura: Excuse my ignorance, but is upper Aahoaka
in Anahola? Where is that?
Mr. Nakatani: That is in Kalepa.
Ms. Yukimura: They are both related to Kalepa. Even
Field 21?
Mr. Nakatani: That is in Kalepa also, but that is at the far
end going down to Fern Grotto and DHHL lands.
Ms. Yukimura: Okay. In respect to Kitano, you decided to
"breach." What does that mean?
Mr. Nakatani: We decided to deregulate it. In other words,
so long as we explain that it is a dam that is on the books, but it has not been used
for a number of years. We just want to make sure we deregulate the dam so it does
not impound any more water.
Ms. Yukimura: You are putting it in a condition where it
does not collect water?
Mr. Nakatani: That is correct.
Ms. Yukimura: Are you looking at maintaining the integrity
of the dam in case you need it?
Mr. Nakatani: No.
Ms. Yukimura: You are essentially giving up this dam
infrastructure?
Mr. Nakatani: Right.
Ms. Yukimura: You decided that it is not important or
necessary to agriculture on Kaua`i?
Mr. Nakatani: I think when we looked at it, I think it is not
being used. It serves the upper Kekaha lands. For us, the upper Kekaha lands... if
we do any kind of agriculture, we wanted it to be less intensive than sugar. What
we are finding is that since sugar has gone, it has been pretty friendly to the
environment when not having big storms with silt coming down. We are looking
more for a tree crop. I think that we have enough water that aside from sugar cane
that took a lot of water and the methodology that we use today like drip would be...
with the water we have in the ditch, that would suffice.
Ms. Yukimura: Are some of those upper Kekaha lands not
DHHL lands?
Mr. Nakatani: Yes, but they are on a separate ravine and
they have a separate reservoir called Pu`u Opae Reservoir.
Ms. Yukimura: You are making a major policy decision to
not to keep a reservoir?
COUNCIL MEETING 33 NOVEMBER 6, 2013
Mr. Nakatani: That is correct.
Ms. Yukimura: You have the documentation and so forth?
Mr. Nakatani: We are going through the process right now,
and we feel confident that whatever crops are deemed for the upper region would
have enough water just coming from the ditch.
Ms. Yukimura: Essentially, the rest you are keeping as
agricultural resources?
Mr. Nakatani: That is correct.
Ms. Yukimura: They are in what condition? Are they in
good repair? You do not have any that is in good repair on Kaua`i. Do you?
Mr. Nakatani: I think Mana needs to be... we are in the
design phase, but that needs to be overhauled.
Ms. Yukimura: You are doing a major renovation of the
Maria Reservoir in order to bring it up to compliance. That is what you call it?
Mr. Nakatani: That is correct.
Ms. Yukimura: Okay. The rest...
Mr. Nakatani: Upper Aahoaka is being worked on.
Somehow, there was a problem on design so we stopped, but we did get an
appropriation for about one million dollars ($1,000,000) to finish the project.
Hopefully, it should be done within the next year or eighteen (18) months.
Ms. Yukimura: Are these related to agricultural plans that
ADC has?
Mr. Nakatani: That is correct.
Ms. Yukimura: Okay. Chair, so that we do not take up the
whole day, could we have them back to focus on some of this at some point? I want
to say that the County is interested in an Islandwide Ag Park system and we hope
that there is a way to work with ADC, who holds much of the Ag resources, and see
how we can do that. We have been in conversation, as I know you have, with the
Farm Bureau as well.
Mr. Nakatani: Okay.
Chair Furfaro: Members, I have a bit of a backlog now so we
might be here all day on this item. We will be inviting you back and I want to tell
you that I have a problem with our Important Agricultural Land (IAL) piece that we
have been working on for four (4) years while I have been on this Council. The
question was always related to "no water, no Ag." You folks seem to be making
some major policy discussions without even seeing Kaua`i's final Important
Agricultural Lands strategy, which is in our Planning Committee. Maybe when we
have our Planning Committee, we can have you back when we are talking about the
COUNCIL MEETING 34 NOVEMBER 6, 2013
Important Agricultural Land piece. I understand DNLR and engineering services—
there is also the State Commission on Water Management, who is expecting to hear
from us in seven (7) years about our water plan. We have all of the moving parts
here and it does not seem that anybody is sitting around the table with a cup of
coffee and a big malasada to figure out what we have to do for the right reasons, for
the right people. That is concerning to me. That is my comment for right now. I
am going to go to Mr. Kagawa, and then Mr. Bynum. Please understand; Kaua`i
has worked very hard and spent a lot of our own money on the Important
Agricultural Land bill. We did not take a nickel from the State. If these pieces are
not coordinated, it is concerning, and I am speaking you as a business guy. That
concerns me. Mr. Kagawa, you have the floor.
Mr. Kagawa: My question is for Mr. Nakatani. Are you
familiar with the Waimea River? Have you had those complaints from people in the
valley that have said that they are concerned about the height of the river,
especially near the swinging bridge? I am not exaggerating, but it is about a foot,
maybe, at the highest right under the swinging bridge. As a youngster, I grew up
there. My grandfather is from there. I used to dive in there and the water used to
be up to five (5) feet around the swinging bridge. Now if with I went with my
goggles, I would be like a beached whale and would not able to move. It is very low.
They are saying that the ADC is allowing water to flow towards Kekaha side. I am
wondering if that is part of the Mana Reservoir that flows some water to the
Waimea River?
Mr. Nakatani: We are kind of drifting on the Waimea
complaints, so I cannot comment too much, but I just want to let you know that we
are taking less water than what happened in the plantation days. Maybe that is a
short explanation to you. We are not taking any more water...
Mr. Kagawa: Not taking any more water?
Mr. Nakatani: Not diverting any more water that I believe
as in the plantation days.
Mr. Kagawa: I think I moved out of there about ten (10)
years ago and the height was still about three (3) to four (4) feet and now it is down
to a foot. I am just trying to see if there is a reason because of the reservoirs or if it
is not...
Mr. Nakatani: I cannot answer that question not knowing
all the facts, but it could be seasonal. In September, it has been really dry. They
can blame it on climate change and everything else like that, but I really do not
know the answer to that, but can I find out.
Mr. Kagawa: Okay. I think that if it is, it should because I
can see a reservoir drying out. I cannot see a river drying out. It is very
concerning. Like I said, it has happened over ten (10) years since I moved. It will
be dry soon if the trend continues. If it is because of ADC allowing water to go away
from the Waimea River, then I want to see at least some effort being made to ensure
that the river continues to operate as a river. The Makaweli River is fine. Me and
Mr. Rapozo went out there and we witnessed both rivers. The Makaweli River was
fine. It is just the Waimea River that is completely different from how it was. If
you could look into that, I would appreciate it. Thank you, Chair.
COUNCIL MEETING 35 NOVEMBER 6, 2013
Chair Furfaro: Mr. Kagawa, I am going to send that over to
you as a question if you could look into it for us because I was recently up there with
the kalo farmers and we might be exaggerating twelve (12) inches; the water might
have been ten (10) inches at the high point. It is very concerning. Mr. Kagawa, we
will send out a question, and if you could look into that for us, we would appreciate
that. Mr. Bynum, you have the floor.
Mr. Bynum: I want to talk a little bit more about Kitano.
I am going from memory but Kitano is identified as one of the best potential hydro
resources on the island and the potential for pump storage. There were some
debate and disputes that ADC gave permits to one company. What happened to
that? Are you aware of that?
Mr. Nakatani: That is an ongoing discussion and I am not
sure what is happening to that. Are you talking about Pacific Light and Power?
Mr. Bynum: Excuse me?
Mr. Nakatani: You are referring to Pacific Light and Power
on hydro?
Mr. Bynum: I do not know all the details, but I know
there is this dispute. I know it is identified as one of the best potential hydro
resources for Kaua`i. The Kitano Reservoir potentially, as I recall, could be used for
pump storage because we are going heavily into solar which operates during the
day.
Mr. Nakatani: Right.
Mr. Bynum: I do not want the State on one hand to hurt a
resource that might be critical for our energy future. Is the right hand talking to
the left hand?
Mr. Nakatani: I am sure that the right hand is talking to
the left hand, but they may not be agreeing on the issue.
Mr. Bynum: I am surprised to hear in the middle of that
that the State is saying that they are going to decommission the reservoir. The
dispute is who gets to develop the resource, I guess. I have been sitting here for ten
(10) years saying "what are we waiting for" in terms of developing that hydro. To
hear that you are planning to decommission Kitano, when it could be a key element,
I know I am going to follow-up on that and I hope you will, too.
Mr. Nakatani: Yes. That is an ongoing discussion. I do not
think I am at liberty to answer that question because it gets very complicated.
There are competing parties and potential lawsuits. I am not privy to some of the
information and it would be just speculation. I will decline and say that I can look
into it, but I can tell you that I have not heard much from either party.
Mr. Bynum: Thank you.
Chair Furfaro: We are coming up on a need for a break by
contract, but there are many other people here in the audience. I would like to use
a moment of personal privilege before we go into that recess. For those of you who
COUNCIL MEETING 36 NOVEMBER 6, 2013
might be in the audience in regards to the November 7, 2013 Special Council
Meeting tomorrow, I want to remind everybody that the values posted in the lobby,
both the first and second floor for this Council, about servicing with aloha and
ho omanawanui, having patience with process; and haulike, working through these
challenges— I want to make sure that we understand that tomorrow is a procedural
meeting. For those of you in the audience, who want to give testimony on that, I
would like to stress that the meeting is only a procedural meeting for "laying the
item on the table." Okay? That item, of course, is the veto. There will not be a vote
tomorrow on overriding the veto. The procedure requires us to lay it on the table,
and then post a meeting within five (5) to thirty (30) days, and that meeting date is
at the discretion of the Chairman. I am tentatively doing that on the 14th or 15th of
November and we will decide that tomorrow. I want to also make sure that you
understand that we have not forgotten all of this testimony that we have received
already on this Bill. Again, I want to make sure you know that the Council will not
be voting on the override and the Council will be restricted in their question and
answer as well. This is a procedural piece. If you have any specific questions on it,
you can look at our Council Rules, Section 4.03, which states exactly what I just
shared with you. That is for the audience here and anyone who is watching this on
web transmittal. Right now, we need to take a break for the Captioner. Gentlemen,
I cannot reiterate how much I appreciate having you here. In ten (10) minutes, we'
will be back.
There being no objections, the meeting was recessed at 11:08 a.m.
The meeting was called back to order at 11:24 a.m., and proceeded as follows:
Chair Furfaro: Aloha. Just before we continue on this, I
made a statement earlier for those who wanted to review my comments about the
process. You can find it in the Charter, Section 4.03A, and you can also find it in
the Council Rules, Section 6. Gentlemen, I felt it was nice of you to come back after
this recess. Again, I want to thank you for being here. I want to also share with
you that when we have an item or two that is going to come up that is going to deal
with our Important Agricultural Land issues, it is probably going to be an
opportunity for us to ask you to come back. That will probably be in a Committee
discussion and Councilwoman Yukimura is currently the Vice Chair of that
Committee. It is very important as we review our Important Agricultural Land
parameters that we understand where the conduit of information is. Nobody went
wrong because they had too much information. I believe that is so true. Are there
any questions for our guests here? I am sorry I had them wait for ten (10) minutes.
Mr. Hooser, I think you had a question?
Mr. Hooser: Actually, Chair, you addressed most in your
remarks in terms of coordinating with the County and ADC land. I appreciate you
bringing that up. I have one remaining question. Councilmember Kagawa
mentioned the water at the Waimea River and I think I heard pending litigation. Is
there pending litigation regarding the alleging of excess water diversion on the west
side?
Mr. Nakatani: I do not really understand the question, but
just to be on the safe side, I am just going to say that somebody talk to Mr. Kagawa
and the Chair. They both had a question and they can answer that question. I am
not an expert to answer that question at this time because I do not know of the
intricacies of the Waimea River and the irrigation system.
COUNCIL MEETING 37 NOVEMBER 6, 2013
Chair Furfaro: We could fold Mr. Hooser's question into the
piece of correspondence that will go over. I will be glad to do that.
Mr. Hooser: Great. Thank you, Chair.
Chair Furfaro: Are there any other questions? Go ahead,
Mr. Kagawa.
Mr. Kagawa: I just wanted to add one final thought to the
Waimea River being really low. I guess the evidence or reason why they are making
that assumption is that I believe they said it was the Kinikini Ditch that is really
high, way higher than it used to be, or the flow is much greater. Basically, they are
looking at two (2) waterways; one really going down and one really going up. They
are just making that assumption because nobody really knows. I was talking with
Elton a little bit on how groundwater plays into it. They are just making that quick
assumption that they are taking more to that side. Thank you.
Chair Furfaro: JoAnn, you have the floor.
Ms. Yukimura: Thank you. One of you mentioned a
"Certificate of Approval to Impound Water." Can you just tell me how that works?
What it is? What is the permission for?
Mr. Matsuda: Under the new statutes that got revised in
2007, dam owners are now required to submit or have a Certificate of Approval to
Impound Water. We have worked with the Farm Bureau and different farmers to
come up with a good strategy for implementing this. This year, we have just sent
out the notices for them and applications for them to apply for this. Right now, the
certificate will be based off of owners showing that they have met the minimum
requirements for operating their structures, such as maintaining their spillways
clear, having outlets that are operational, clearing the vegetation, having access to
their structures, as well as addressing any priority one recommendations that we
have identified in our inspection reports, which have a direct impact to the safety of
the structure. On those deficiencies, they would need to identify a mitigation plan
as far as how they plan to implement it and the timeline. We are still working
through owners' submissions right now and they will be taking these applications to
the board for approval.
Ms. Yukimura: This is the way that you would be able to
restrict water. You would not issue a certificate or you would condition the
certificate to certain maximum levels of water?
Mr. Matsuda: It is one of the mechanisms that we can
utilize to regulate operations. If we do see something during our inspection time
that is of an urgent nature or concern, at that point in time, we can issue out a
notice to the owners to restrict their usage.
Ms. Yukimura: Okay. Lastly, you mentioned the level of
hazard of any dam is partly due to the number of people that may be in the way of a
break. What kind of procedural mechanisms do you have to give input to land use
decision makers who may be deciding to allow residential densities in the area of
hazard?
COUNCIL MEETING 38 NOVEMBER 6, 2013
Mr. Matsuda: Carty was just saying that possibly, we can
go into discussing how we came up with those identifications because that kind of
leads to a little bit of sensitivity as far as how we release that information. After
2006, we did a Dam Break Analysis. What we did was we modeled every structure
that we regulated and found out what the potential inundation area would be if
these structures were to suddenly fail full. We then utilized and overlaid it with the
current census data and that identified whether or not these structures had a
potential risk for loss of life, and that is what we used to categorize a "high," a
"significant," and a "low hazard structure." With that being said, historically and
nationally, that type of information has been very classified and held just because of
the concern of terroristic targeting of these structures. That type of information has
not been released yet. We are working with owners and trying to figure out a way
where we can actually start to... our intent is to release that information to the
public so that they are aware of what structures or if they are in an inundation area
or not. What we did after we did the inundation mapping is we worked with all of
the County Civil Defense agencies to develop an evacuation map. That inundation
map just tells the area where the computer model identifies as being inundated, but
the evacuation map takes into account the County's operations as far as evacuation
procedures, where the roadblocks may be put in place, and any additional buffers
that they want to put in place. The County of Kauai has these evacuation maps for
all of our dam structures. That is their map; they are the owners of that. If they
would like to circulate that to your Planning Department for implementation as far
as any future development restrictions, or at least notifications, that is entirely up
to them.
Ms. Yukimura: Do these evacuation maps show the
inundation areas?
Mr. Matsuda: The evacuation maps are based off of the
inundation areas. In a sense, most of them probably have inundation with a little
bit of a buffer.
Ms. Yukimura: For example, if the County is allowing or
permitting an Ag dwelling that is just below Ka Loko in the flood inundation area—
I do not know if you call that "flood" or "dam break." What do you call it?
Mr. Matsuda: A dam break is fine.
Ms. Yukimura: If it shows that there is another potential
house site that would be out of the area, then that would be useful information.
Also, if they were allowing a large residential area like Kukui`ula in Po`ipu, which
was on eight hundred (800) acres or so, below a high level reservoir, which is
Waita— actually, Kukui`ula is not, but Koloa Town is in the flood area of Waita.
Assuming you were just beginning to do land use planning on a vacant area with
that kind of dynamic, that would be important assuming that the reservoir was
going to remain there. It was important to agriculture, water replenishment, and
all of that stuff as to where you would allow residential densities, town, or
commercial uses even.
Mr. Matsuda: That is a policy decision for each County to
decide.
COUNCIL MEETING 39 NOVEMBER 6, 2013
Ms. Yukimura: Correct, but can you see that the information
or the maps would be important or should factor into the decision making? Or at
least be available for these.
Mr. Matsuda: We do. I guess what I am saying is that we
do not necessarily make the inundation maps available to the public, but the
evacuation maps are a County map now.
Chair Furfaro: That should be something that we will direct
to our Civil Defense Agency.
Ms. Yukimura: And Planning.
Mr. Matsuda: Your Civil Defense Agency does have that?
Chair Furfaro: Between the two (2), Planning and Civil
Defense, we should direct it that way.
Ms. Yukimura: Okay. Thank you very much.
Chair Furfaro: I do not think we have any more questions
for you, but once again, let me thank you very much for being here with us today.
We will be sending over a piece of correspondence and maybe even a tentative date
of when we will have something that appears in the Planning Committee. Please
watch for those questions, and again, thank you. Have an enjoyable day on Kaua`i.
We are going to take public testimony now. Do we have anybody that is signed up
for public testimony on this item? Rick, do you have any? None? Okay. Thank you
to your Kaua`i representatives for being here on the island. Thank you very much.
What I want to do is go to the Resolution as we seem to have a number of other
people here. Once we get everyone settled down and say their aloha and goodbyes
outside, we will go to the Resolution. It has been brought to my attention that there
might be some amendments to the Resolution and a motion on the table for a
deferral for two (2) weeks. First, let us receive C 2013-355.
There being no objections, the meeting was called back to order, and
proceeded as follows:
The motion to receive C 2013-355 for the record was then put, and
unanimously carried.
There being no objections, Resolution No. 2013-72 was taken out of the order.
RESOLUTION:
Resolution No. 2013-72 — RESOLUTION TO IMPLEMENT AN
ENVIRONMENTAL AND PUBLIC HEALTH IMPACTS STUDY (EPHIS), VIA
FORMATION OF A PESTICIDE AND GENETIC ENGINEERING JOINT FACT
FINDING GROUP (JFFG): Ms. Yukimura moved for adoption of
Resolution No. 2013-72, seconded by Mr. Rapozo.
Chair Furfaro: It has been moved to be approved and
seconded on the floor which is necessary for us to have discussion, but I am hearing
that there might be some additional amendments to put into this, of which a
COUNCIL MEETING 40 NOVEMBER 6, 2013
deferral might come out of this for two (2) weeks. Before we go any further, is there
anyone in the audience that wishes to testify on Resolution No. 2013-72?
There being no objections, the rules were suspended.
ANDREA BROWER: Good morning, Councilmembers. My name
is Andrea Brower. I am here to present joint statement that was submitted as
written testimony from myself; Elif Beall, who is an Attorney; Dr. Carl Berg,
Research Scientist; Katie Johnson, Mental Healthcare Provider; Marghee Maupin,
Nurse Practitioner; Louisa Wooten, Farmer; Fern Rosenstiel; Elijah Frank; Dustin
Barca, Co-Directors of `Ghana `o Kaua`i; Jeri DiPietro, GMO Free Kaua`i; Aria
Castillo, Vote Kaua`i; Jennifer Ruggles, Pesticide Action Network; Pat Gegen, Zero
Waste Kaua`i; Lorilani Torio, Mom's Hui; and Kathleen Horgin, Civil Structural
Engineer. While we, the undersigned, strongly support a Health and
Environmental Impacts Study and related to the agrochemical GMO companies'
operation on Kaua`i, we are in favor of deferring this Resolution until Bill No. 2491
is instituted. An impact study without full legally mandated pesticide disclosure
will not be possible for gathering the information and data that a truly rigorous
scientific study requires. We are very concerned by the Mayor's veto press release,
which stated that he is in favor of supporting this EPHIS, but not Bill No. 2491.
The direction that is being advocated for a study without disclosure would be costly
to the County, but would not provide meaningful results. Far too often,
controversial pieces of legislation are reduced to studies that lack regulatory teeth.
We would also like to raise a couple other concerns with the Resolution. With the
term "community stakeholders" left undefined, we are concerned about the role that
the agrochemical industry will play. We do not think it is appropriate or helpful to
have the industry that is being investigated for potential environmental and human
health harms acting in an advisory role to independent consultants. This would be
perceived by the community as a strong conflict of interest and does leave the door
open to some conflict. While we appreciate the sentiment, we strongly caution
against an overreliance on and mandate of community consensus. As you all know
too well, this issue has been highly controversial and we cannot wait on consensus
for rigorous scientific investigation to begin. As proposed, there is no mechanism in
place to ensure that the study moves forward if the Joint Fact Finding Group
(JFFG) breaks down. Also as proposed, the process for an EPHIS could take up to a
year before any investigation and data collection actually begins. We do not find
this acceptable, given the real and perceived sense of urgency in the community.
Ideally, we would like to see the technical study move forward in parallel to the
community process. Generally, we are concerned by the approach of waiting for
perhaps unattainable consensus before a rigorous, independent scientific study
moves forward. We urge you to keep in mind that we are dealing with an industry
infamous for purposeful manipulation of scientific information, and that what the
community wants and will be confident in is an independent, rigorous assessment of
environmental factors and human health impacts. Thank you very much. Are
there any questions?
Chair Furfaro: I do not have any questions at the table. I
just want to share with you some facts.
Ms. Brower: Okay.
Chair Furfaro: First of all, this is a fact finding study and
you cannot find all of the facts with only having half of the people at the table.
Number two (2), with Akahane vs. Fasi the basis of this study has been tested that
COUNCIL MEETING 41 NOVEMBER 6, 2013
we do have to give that authority to the Administration. Who the players are at the
table could be seen in some upcoming amendments, but that is the law, and that is
the court cases if you visited them. The fact of the matter is that the Council could
do other things. We could add other floor resolutions, go to the Hawai`i State
Association of Counties (HSAC) gathering as an organization, petition the State for
rule changes under agricultural laws and so forth, but I just want to say that for us
to get to the next step and try to bring the community back together, I just want to
make sure you understand that we are looking at a two (2) week deferral to address
some of those points. The reality is that I think we do need to have both sides at the
table.
Ms. Brower: Can I respond?
Chair Furfaro: Sure.
Ms. Brower: Okay. I agree with bringing different
players to the table, but if this is truly an investigative study, then some rigorous
outside consultant can do that study without having those players influence what
they are actually studying. I think that is our main point here. To have this
process of bringing the community back together is really important, but to spend a
year doing that before there has been actual information gathering is just not really
possible I do not think. We need more information on the table first.
Chair Furfaro: I want to assure you that I did hear your
points.
Ms. Brower: Yes, okay.
Chair Furfaro: I heard your points, but there are certain
parameters that we have to layoff that are very clear in the law.
Ms. Brower: Right.
Chair Furfaro: Again, the item that is on the agenda is not
an investigation; it is a Fact Finding Resolution. I just want to frame it like that for
you. Also, I need to say to you that I appreciate all of the testimony from the people
that you named in your organization that have participated up to this point, but I
just needed to share that with you. JoAnn, did you want the floor?
Ms. Yukimura: Yes. I do have a question. Andrea, thank
you always, for being here and for your thoughts. The debate up to now has been a
lot of argument about who is a "neutral consultant?" To have half the community
choose the neutral consultant or half the community represented in choosing the
neutral consultant will only continue the arguments about who is biased. If we can
find a consultant that all of the major stakeholders agree on before anything is
done, may be very important to a good study.
Ms. Brower: Maybe it is not appropriate for me to ask a
question. I am sorry. Who is defining who the "appropriate stakeholders" are
though?
Ms. Yukimura: I am sure that is a valid question. Right
now, I think it is thought to be a facilitator who would interview all sides and
choose from all sides. There might be other ways to make the selection of the
COUNCIL MEETING 42 NOVEMBER 6, 2013
committee. That is open with a deferral if we are looking at to think about how we
would do this process. The whole reason for the process is that people from all sides
have to sit down and talk to each other. There is no way to avoid that. Thank you.
Ms. Brower: Thank you.
Chair Furfaro: Mr. Hooser, you have the floor.
Mr. Hooser: Good morning. I just have some clarifying
questions. I think there are different ways to look at this and I want to be clear on
the way you are looking at it. There are two (2) components; a neutral consultant,
and then there is this group. Are you suggesting that the group of knowledgeable,
et cetera, would not include the agrochemical companies or those kinds of people,
but yet they would still be consulted?
Ms. Brower: Yes.
Mr. Hooser: Their input would still be provided, but they
would not be votes, if you would, in the process?
Ms. Brower: That is right, that are determining what
should and should not be included in the Scope-of-Work and things like that.
Mr. Hooser: If you flip it and the other side, for example
the so-called "anti-group," they would also not be included in that JFFG group? As
much as possible, that would be the experts and community people who may be
have been arm's length from the issue, but still qualified?
Ms. Brower: I think as much as possible, since we are
looking at environmental and health concerns, we would want to involve medical
community people and environmental scientists who have raised the concerns, but
probably not people who have just been on the activists' side...
Mr. Hooser: You want a credible group?
Ms. Brower: Absolutely. We want to have a credible
group that the entire community feels is credible, but I realize that is a very
subjective process and there are going to be differing ideas about what counts as
"credible," and what does not. I do think that the group that is having votes and in
advising on this independent study includes stronger presentation from the
industry will not be considered credible by a majority of the community.
Mr. Hooser: Some criteria might be that no one with a
financial interest in the outcome would we appropriate to have on that group?
Ms. Brower: I think that would be appropriate.
Absolutely. You could still leave room in that. For example, a research scientist,
who is knowledgeable on Genetically Modified Organisms (GMO) and maybe has
some background in biotechnology and things
Mr. Hooser: Thank you very much. Thank you
Mr. Chair.
COUNCIL MEETING 43 NOVEMBER 6, 2013
Chair Furfaro: Before I recognize Mr. Rapozo, I hope you
understood my comment. We do not want a subjective group, but we want the most
objective one we can so it will also help heal this community. Mr. Rapozo, you have
the floor.
Mr. Rapozo: Thank you, Mr. Chair. Thank you for being
here. I know the "investigation" word has come out, but this is not an investigation.
I have some serious concerns with the verbiage in this Resolution because it
mentions that the Council will initiate an investigation or an inquiry, which we are
only able to do that under one section in Charter, and you cannot circumvent that
by a resolution. That is a concern that, obviously, I will be bringing up later. I am
trying to get an idea of what do you envision this being as far as who would be on
this? For every doctor that is opposed to this, there is a doctor or an expert that is
not opposed. I am not sure how we pick the people to sit on this board. I am just
curious. How does that work? How do you see it happening?
Ms. Brower: I have not thought about how you would
actually... I think not having a financial interest in the industry is very important,
but something that I think is really critical is whatever happens with this
community group and advisory overseeing committee... that technical, rigorous,
independent scientific study moves forward at the same time. I do not think it is
worth waiting for an entire year for this community group to come together and talk
about things when people want the data now and any outside consultant that has
done this kind of work can come in, take a lay of the land, and figure out what needs
to be studied. They do not need to be advised by this community group and I
understand the challenge that Councilmember Yukimura is bringing up of who
picks the consultant. There are some very credible third parties that have
experience with a lot of big cases like the tobacco cases or super fund sites that
some people might consider are very legitimate.
Mr. Rapozo: Right, legitimate as far as activists are
concerned. That is going to be the dilemma of this Council. Obviously, it will not be
us because we do not control who gets hired. I think we agree that this process
needs to move forward and it spells it out right here. You get a Request For
Qualifications (RFQ)... so you put out these Request For Proposals (RFP) and all of
these people will submit their proposals, all their experience, and all the cases that
they have worked. Obviously, the Administration is going to have to choose an
objective third party, no conflict firm that is going to do this study. That firm is
going to have to be the one to determine the scope because they are the experts in
that, not the community. Right now, the community is running on high octane
emotions. You are not going to get a good scope. You are going to have half of the
community that wants this and other half who wants that. That is what an RFQ is
for, to bring in someone that is objective and fair, and then that person is going to
determine the scope.
Ms. Brower: I agree.
Mr. Rapozo: I heard you say that, so I am agreeing with
you. That person uses those resources of that firm to go out, collect the data, and
get the information. This cannot be driven by emotion. This cannot be driven by
personal subjectivity. If we want this thing to work and want to get the results that
are accurate, fair, real, and scientifically based. That is the only way it can be done.
I am not going to support a Resolution that going to get a community group together
to determine the scope for an expert to come in. I cannot do that. I think we agree
COUNCIL MEETING 44 NOVEMBER 6, 2013
that we need to get this thing passed. Number one, it is not an investigation; it is a
study. This Council can only do a 3.17 Investigation and that is not what this
Resolution does. A study needs to be done and you do it like you would do any other
impact statement or impact study. You go out for an RFQ, get the qualified people
in, and then the Administration will make that determination of who gets selected.
I do not know how else to do it. I know whatever happens and whatever this expert,
objective, third party comes out with, and you are going to have part of the
community say "it was rigged." We can only do what we can do. We can only rely
on the experts that are out there who available and willing to come here and do this
study. I hope we agree on that because I think that is the only way we are going to
get to some resolution on what is happening on this island.
Ms. Brower: I think we do agree. You are much more
familiar with that process, so I do not have the manc o to know exactly how that
should look or give feedback, really.
Mr. Rapozo: I do not think the process should be changed
for this issue is what I am saying. If we had a traffic issue out in... and we have
done this in past, say Ke`e Beach for example, and we are going to do a study on
that. You are not going to only talk to the community or visitors. You hire an
expert who analyzes traffic flow, traffic counts, turning radiuses, and vehicle traffic.
Then they do a scientific breakdown and say, "Okay, this is what you need to do."
That is what I am looking for, which is somebody who has expertise in the field,
objective and unbiased, and comes back with a report so that we can more an
expert in the field that is unbiased to come back with a report to us so that we can
move forward. I think that is the process that needs to be done. We cannot have a
process that is influenced by any specific side of this issue or else it is really useless
in my opinion. My question is if you agree with that because I heard you saying
that is kind of what you wanted, an unbiased...
Ms. Brower: Yes, I think we do agree. There is the
challenge that you and Councilmember Yukimura are bringing about who selects
and how they are selected. I think that you are going to get all of these proposals,
right? There are some real big experts who have a lot of qualifications that are not
seen as biased and hopefully they rise to the top.
Mr. Rapozo: I would hope that through the process the
Administration chooses to select, that would be the case. I would hope. I think it
would be an open process and we would find out who is selected, obviously. I think
at that point if there is a problem with the selection, that could be challenged before
the contract gets issued. I think there are some safeguards in place for us, this body
along with the community, to make sure that the right consultant is picked.
Ms. Brower: As much openness and transparency through
that whole process is really important for building community trust.
Mr. Rapozo: I think aside from the competitive bidding
process that leads up to an award of the contract, aside from that, I believe
everything will be transparent. Thank you.
Chair Furfaro: Members, I want to remind you that you
need to pose a question to Andrea and not have continued philosophies discussed.
Mr. Rapozo posed an understanding about having balance on this for the
COUNCIL MEETING 45 NOVEMBER 6, 2013
community. JoAnn has her hand up, but I want to know if other members who
have not had a time to talk want to pose a question to the speaker. Mr. Bynum?
Mr. Bynum: Thank you very much for your testimony. I
am going start by saying I agree that we cannot conduct a study without mandatory
disclosure. It is pointless. Today, I will be suggesting that we resolve whether Bill
No. 2491, Draft 2 passes before we spend a lot of time and energy here. Do you
know the difference between an "RFQ, Request For Qualifications and an "RFP,
Request for Proposal?" There are important distinctions there, so I appreciate your
testimony, but what I hear you are saying is that when the community engages, it
should be about the Scope-of-Work and it should not include members who have a
financial or an interest in the outcome. Is that a fair summarization?
Ms. Brower: Actually, the Resolution as proposed is
saying that this community group should define the Scope-of-Work, and I am
actually saying that this rigorous outside consultant should define that
Scope-of-Work.
Mr. Bynum: I think that is the RFP process. We say,
"Hey, this is the outcome we desire. Tell us your proposal to achieve that outcome."
I see the community group as giving that outcome and saying in addition to the
normal environmental inquiries that are done in this circumstance. Those firms
will give us their proposal and say, "Hey, in order to conduct this, you are going to
need to do these kinds of studies. This is how you are going to remain objective and
this is how citizen involvement occurs. These are our cost estimates of what this
will cost and these are types of outside consultants we need." There are those
people in this Country that know how to do that... many of them, actually, and
some of whom will not want to get involved in this because it is too controversial. I
just want to say that is what I envision. The citizen group is not going to conduct
the study or tell these experts what you need to do to be objective, right? They are
going to say, "This is the outcome we want for our community." Typically...
Chair Furfaro: I need a question, Mr. Bynum.
Mr. Bynum: The Environmental Impact Statement (EIS)
process will include some kind of community group that is consulted and monitored,
but it is part of the scope that would come from the consultant. Is that your
understanding of how this would go?
Ms. Brower: Well, that is not actually what the
Resolution seems to be suggesting. I guess this is why we are just raising
something red flags because some of those things probably need to be determined.
Mr. Bynum: I will have questions for the County
Attorney. We already found out recently that if we do not clear some of these
questions, we get surprised. I am done with questions. I just want to see if we were
thinking along the same lines. I think the Council has to educate itself and reach
out to the County Attorney and others about the elements of this Resolution to
ensure it hangs together properly. I think we will engage in that process. I do not
want to delay that process of inquiry, but on the other hand, I am not ready to bring
this to conclusion until we resolve some of these others. Thank you.
Chair Furfaro: Andrea, I just want to make sure that you
did hear what I said that there is discussion about this being deferred for two (2)
COUNCIL MEETING 46 NOVEMBER 6, 2013
weeks.
Ms. Brower: Yes, thank you.
Chair Furfaro: Okay. Feel free to communicate...
Ms. Brower: As those two (2) weeks go on?
Chair Furfaro: Yes. JoAnn, do you have a question for
Andrea?
Ms. Yukimura: No, I do not. Thank you.
Chair Furfaro: Okay. Thank you very much.
Ms. Brower: Thank you.
Chair Furfaro: Is there anyone else who wants to testify?
Please come right up.
NOMI CARMONA: Aloha, Kaua`i County Council. My name is
Nomi Carmona for a nonprofit called "Babes Against Biotech." I am now officially
your constituent, so thank you for having me. I want to definitely make sure that
Bill No. 2491, Draft 2 is overridden. I see no point in proceeding with any decisions
about the study until we decide on Bill No. 2491, Draft 2. I am requesting on behalf
of our thirteen thousand (13,000) members and our three thousand (3,000) Kaua`i
members that you please defer the study and any action on the study until you have
decided about Bill No. 2491, Draft 2 because there is no point in studying without
disclosure. We need the disclosure. What are we going to study? Thirty (30) pages
with fifteen (15) redacted pages? That does not give us any information. We would
request that you please defer action on this study and maintain an objective panel
and third party consultant to handle these things. We are very concerned about
problems with conflict of interests that are going on across the State and even at
County level. Please be thoughtful of those things and give us a crew that we can
count on and can trust to give us accurate results once we have hopefully very
successfully overridden the veto. That is all. Thank you.
Chair Furfaro: Is there anyone else who wants to testify? I
want to remind everybody who may not have been here about some procedural
items in Rule 6 and the County Charter Section 4.03. This is just a reminder that
tomorrow's activity based on some of the values that are posted in this building that
represents the Council's procedural process that tomorrow's discussion will, in fact,
not be voted on by the Council. Tomorrow is just to lay the issue of the veto on
Bill No. 2491, Draft 2 on the table. I just want to repeat that to you folks so you
understand that the Council will not be voting on an override tomorrow. Is there
any further dialogue about this Resolution? If not, I am going to recognize
Councilmember Yukimura.
There being no objections, the meeting was called back to order, and
proceeded as follows:
Ms. Yukimura: Thank you, Chair. I have a couple of
amendments that I would like to propose, and then I will discuss them.
COUNCIL MEETING 47 NOVEMBER 6, 2013
Ms. Yukimura moved to amend Resolution No. 2013-72 as circulated, as
shown in the Floor Amendment which is attached hereto as Attachment 1,
seconded by Mr. Kagawa.
Ms. Yukimura: Thank you, Chair. This is almost
housekeeping and perhaps, I will get to explain this process which I wanted to do in
the question and answer with Andrea, but I felt that it might be more appropriate
to talk about it on the floor. The first part of the study really needs a facilitator
rather than a consultant. The second part of the study would be a consultant. It is
just a clarification. That is about it and that is what these amendments do. I want
to explain the process because I feel there is a lot of misunderstanding about it.
Chair Furfaro: You have the floor.
Ms. Yukimura: Thank you. Stakeholders are people who
have a stake in the issue, whether it is a financial stake or a community health and
environmental protection stake. The intention was that we would pull together a
group of stakeholders along with some scientific experts to help define the scope of
the study that a consultant would oversee and do. We anticipate that the study will
be asking scientific questions. From the dialogue that has happened over the course
of processing this Bill, some of the key questions are "At what levels are there
pesticide residues in water, land, and air that are being caused by these
agricultural operations?" Then there is an epidemiological question asking, "What
are those residues or exposures causing in terms of illness or birth defects, et
cetera?" From my listening, those are the questions that this community needs
answered. When we hire a consultant, he or she is given a Scope-of-Work. I have
seen when there is poor definition of "Scope-of-Work" which is a total waste of
money. Also, when Consultants are going far into questions that the community
does not even want answered and spending all of that time and money on those
questions rather than the key questions that the community wants answered. The
Joint Fact Finding Group (JFFG) would be a group of stakeholders from all sides of
these issues who would come together to define what the questions are that we are
going to spend one million dollars ($1,000,000) on, probably. I believe that those
who work in the agrochemical industry are part of the community and they have a
stake in this issue, as well as all of those who have been so fearless and persistent
in talking about health and environmental issues. The issue in this Joint Fact
Finding Group process is very important, and one of the important parts of
consensus is that everybody agrees. People will think that is impossible, except if
health is the key issue. I believe everybody has a stake in health. I believe that
even those in agrochemical or seed companies who live in the community have a
stake in the health of the community and would like to see neutral studies telling us
whether there are real dangers and what those dangers are going to be. A skilled
facilitator can bring those people together, and in a safe and well facilitated
environment, I believe a group can come together and agree on a scope, especially
when we are not talking about what the answers are. We are just talking about
what the questions are. I think people can come together and agree on the
questions, and then we choose a really competent consultant to answer those
questions. I believe that is the only way we will get a study that the community as
a whole would respect and would find useful. That is why this process is being
suggested. My discussion has gone beyond the amendment itself, but I hope it
helps.
Chair Furfaro: Just a little bit.
COUNCIL MEETING 48 NOVEMBER 6, 2013
Ms. Yukimura: Sorry.
Chair Furfaro: No problem.
Ms. Yukimura: You kind of need the foundation of what the
Resolution is about to look at any amendments to it. Thank you.
Chair Furfaro: Are you offering this amendment as the
intent right now as the Amendment is on the floor? Do you want to amend this
Resolution before this discussion about a deferral?
Ms. Yukimura: Yes. I am being told right now that there are
some typographical errors. Chair, in answer to your question, this is a technical
Amendment. I think we should work on making the Amendment better and better.
I am not opposed to a two (2) week deferral, which I think will happen. It will defer
this decision making to after our action on a veto. I do not want a long deferral
because no matter what happens to the Bill, I think we need to start this process.
The initial process of what the questions are going to be does not need the data that
the Bill will yield. In fact, the group might even think about... maybe, if there is so
much understanding of the questions, we might be able to get the data in a different
way. I agree that the way Bill No. 2491, Draft 2 is set up will give us valuable data
for this study. For the use of the data, as I think Andrea has pointed out, will not
happen for a while, while the questions are being defined. I think we should still
move forward with this process whether or not the Bill is passed, but I am working
to pass the Bill.
Chair Furfaro: Okay. I will go to Mr. Hooser, and then
Mr. Bynum. Mr. Hooser, you have the floor.
Mr. Hooser: We are speaking on the Amendment. I did
want to speak to the broader issue and hope that we will defer decisions on the
Amendment, as well as everything. With your permission, I could speak on the
Resolution itself, as well as the Amendment...
Chair Furfaro: I will let you speak specifically on the
Resolution. Go right ahead. You have the floor.
Mr. Hooser: Thank you. I think it is useful to have this
conversation so we all understand where we are all coming from. As we work on
our amendments, we have a better understanding of what each person's position
and concerns are. As a fundamental issue, as Councilmember Rapozo mentioned I
believe, is that you could have a process driven by a consultant or a process driven
by a committee. The way this Resolution is written, the process is driven by the
committee. The consultant is the facilitator as being proposed. While I am open to
that type of process, that puts far more emphasis on the make-up of the committee.
It is not defined here on who determines who is on the committee and what the
ratio proportion of people are. I am going to be working on amendments to help
clarify that. While I agree that economic impacts certainly need to be considered, I
do not agree that entities or persons with a direct financial interest who will get
paid as a result of working on the committee or a paid employee who will impact the
profitability of a company should be on this... or certainly, people that represent the
interests. The Chamber of Commerce, for that matter, and those kinds of people
possibly could be included. People with a direct financial interest on a decision
making committee, relatively small committee; I have some serious concerns about
COUNCIL MEETING 49 NOVEMBER 6, 2013
that. How will the decisions of this committee be made? Will they be made by a
majority? Will they be made by consensus? Those are some questions that I will be
thinking about and offer amendments hopefully, too.
Now, going to item number two (2) on the Resolution where it says
"undertake sustained and science-centered deliberations pertinent to the pesticides
used and genetically modified crops grown." In my opinion, we cannot undertake
any kind of deliberations pertinent to pesticide used without knowing what those
pesticides used are, and we do not know that. It speaks to the requirement that
disclosure be mandated before we can do this study. Item number three (3) likewise
says, "refers to thresholds of safety or danger related to the presence of identified
pesticides." Unless we actually identify those pesticides, we cannot do number
three (3) and I question whether having a group like this determining what
threshold is appropriate or not appropriate; I have some issues with that. Don't get
me wrong, I support moving forward with the process to come up with the Scope of
Work to have a good study, but I am just stating my concerns.
Number five (5), "estimate the cost and timelines." Again, without disclosure
of what chemicals and how we estimate the costs; it has been stated that... we have
good people in our community on all sides of this situation. Certainly, the
executives from the agrochemical companies care about our community and care
about their families and they live here. It has been stated in prior testimony that
they do not make the decisions. We asked directly, "Do you make the decisions?"
The answer was, "No. We call Indiana and they make the decisions." As much as I
want to embrace everyone in the community, we have to be real about who is
making the decisions, and they are made on the mainland.
Finally, in the second to last paragraph, "funding shall be secured from a
variety of sources, diverse stakeholders." I think we have to insist that the County
has to fund this. The County can reach out to other sources, but I believe we cannot
rely... this does not say anywhere that the County is going to pay for the study.
This says, "funding shall be secured from a variety of diverse stakeholders." I think
we need to be very careful about who is funding this if we want credibility. As much
as I might appreciate big companies helping us pay for or activist groups helping us
pay for it, I believe fundamentally that the County needs to be responsible.
However, maybe we ask the State, the Federal government, or maybe there are
other so-called "neutral forces" that can help us, but I believe it should say there
that the "County shall fund, but may seek." Those are some of the amendments
that I am working on. Those are my comments that I wanted to share. Thank you,
Chair.
Chair Furfaro: I will share with the group that I did send a
memo to Finance regarding the first one hundred thousand dollars ($100,000)
coming from the County that there are Federal and State grants that might also be
available. I concur with this cost, but it is not one that we are out soliciting
sponsors for. This is the cost of doing business for Government and I sent that short
communication over to the Finance Director and I will be glad to share it with you
folks next week. I will go to you, Mr. Rapozo, and then Mr. Bynum. We are talking
about the Resolution here before we make any kind of move to defer.
Mr. Rapozo: I definitely support that this does not be
acted on today. There are many things that need to be worked. My suggestion is
that this goes to a Committee because there is a lot of work, Mr. Chair, as you can
see. I have amendments as well. I would ask that it either come to my Committee,
COUNCIL MEETING 50 NOVEMBER 6, 2013
Public Safety, or Committee of the Whole, either way. I think it belongs in a
Committee and not at the Council level because there are just too many
amendments that need to be worked on, and one of them being the reference to the
investigation. I am going to be working with Staff to get some amendments in
there. We could do a 3.17 and we could control the entire process if we chose to go
3.17. I am not so sure, but I know Councilmember Yukimura introduced this, but I
am not so sure if this got through the County Attorney's Office to review. I know
the last time I did not send mine through, I got a scolding.
Ms. Yukimura: This Resolution was not introduced by me,
but it was a jointly introduced.
Mr. Rapozo: The other joint party is not here, so I am
looking to you because you signed it as well.
Ms. Yukimura: We did get it reviewed.
Chair Furfaro: Excuse me for just a moment. The other
joint party is present, just on the other side. Welcome, Nadine.
Mr. Rapozo: I think one of the things that I am concerned
about as it is drafted is the directive language from this County to the
Administration "that the County of Kaua`i fund a neutral to convene and facilitate,
that the County of Kaua`i shall issue a request for qualifications." That is illegal.
We can ask. I think in Resolutions of the past, it is "the Council of the County of
Kauai urges the Administration to do this or do that." We cannot tell the
Administration to do anything. If we want to direct this, let us do a 3.17. This has
absolutely no weight whatsoever, number one. We cannot even enforce this. That
is the big part, which is the legal issue as far as what is really our authority. I do
not believe this Council has the authority to tell the Administration to do anything.
We can urge them. We could ask them. We can put money in there, but if they
choose not to, we cannot direct them to do so. That is what this Resolution pretty
much does.
The other part that concerns me is in all of the "whereas's," this Resolution
relates specifically to the testimony of the people that are against or supports the
Bill. Everything in here was basically a reactive measure. "Okay, we are going to
do what the people want." But when we do a Resolution, you have to put both sides
the coin. We had this issue in the Bill regarding the amounts of pesticides. We had
to put in there "yes, but the County's pesticides are for chlorine." It is the same
here. We talk about all of the concerns about health impacts, including possible
high incidents of asthma, cancer, and yet we have documented data from the
Department of Health that says that the cancer rates on Kaua`i is low, but that is
not in here. I can see putting in "although the Department of Health's cancer
studies or stats show that Kaua`i has an all-time low incidents of cancer. The
community believes that blah, blah, blah." I think that needs to be in here too.
This is a slanted Resolution. That is not our job. Our job is not to do that. If we
want to get to the bottom of this, let us do it fairly and equitably. Let us hire the
experts that can do it for us. That is all I am saying. I want these questions
answered just as much as anyone else, but we need to let the experts do that. That
is who we need to hire. If it is one million dollars ($1,000,000)... I do not think it is
one million dollars ($1,000,000), but it is going to be substantially high if we are
talking about studies and so forth. This Resolution is really basically giving all the
reasons... on one side of the issue anyway, and saying we want to go have our
COUNCIL MEETING 51 NOVEMBER 6, 2013
community dictate and direct some of the scope and all of that. Let us just get to
the bottom of it, hire an expert, and let the expert do what they do best. Let them
do their air samples, soil samples, grass samples, oxygen samples, and whatever
they do and come back with a real report to this body. We cannot direct the
Administration to do that. If we want to have the control that we are all talking
about on this table, then let us just do a 3.17 so we can control the entire process.
That is all I have, Mr. Chair. Thank you.
Chair Furfaro: Okay. Mr. Bynum, you have the floor.
Mr. Bynum: JoAnn, I wanted to ask what you envisioned
the first group that is formed that defines the Scope-of-Work; how long will that
take?
Ms. Yukimura: Yes. We felt that putting the group together
and having the group come up with a Scope-of-Work and parameters for the EPHIS,
would take about one (1) year. Some of the questions that both Councilmembers
Hooser and Rapozo have raised would be the kinds of things that the group would
grapple with, with better information than we have right now around the table. For
example, a study probably for one million dollars ($1,000,000) million could not test
for pesticide levels of all thirty-seven (37) restricted use pesticides or registered
pesticides, so there would have to be some prioritization about which are the most
important pesticides to deal with. This group would be able to find out how much
pesticide residue tests for atrazine or the specific costs and they would weigh that in
terms of which ones we would test for first.
Chair Furfaro: Excuse me one moment...
Ms. Yukimura: I do not believe the Council would do that.
Chair Furfaro: Wait a minute, has your question been
answered?
Mr. Bynum: Yes.
Chair Furfaro: If you want to talk on the subject more, I will
ask the floor, but Mr. Bynum has the floor.
Ms. Yukimura: I am trying to show you why it would take
one (1) year.
Mr. Bynum: I understand your answer.
Ms. Yukimura: There is so much information that you need
to piece together to figure out how you get the greatest value out of one million
dollars ($1,000,000) or whatever amount that we are going make available. We
would not do it by Resolution; we would do it by an appropriation.
Chair Furfaro: Mr. Bynum, you have the floor again.
Mr. Bynum: Chair, because other members have given
general comments and I think that is useful, I am going to proceed to that at this
time. I am very much in support of us doing a study and doing it with a sense of
urgency. There is no question about it. I agree that the funding needs to be
COUNCIL MEETING 52 NOVEMBER 6, 2013
primarily from the County or sources that will not be questioned about their
integrity. If there is some Federal grant out there, great, let us get it. We have to
make sure that this process has integrity. I concur with Councilmember Rapozo
that if the County Attorney has reviewed this, I have not seen the legal review.
That is my intention to ask for a general legal review of the Resolution and ask
specific questions. There is work to do to do this properly and I do not want to delay
that work. I am going to probably suggest that we refer this to the Committee of
the Whole, two (2) Committee Meetings from now, or three (3) weeks from now so
we can continue to do this work. I am going to continue to work on this. I have
amendments that I am working on now. I have questions going to the County
Attorney. I wish I had more of that done, but we have been kind of busy around
here lately. We need to do this really systemically. I will not vote to bring it to a
conclusion until we resolve the Bill No. 2491 issues, but we should not delay the
work we have to do. Having said all of that, there are forty (40) years of
environmental law that set the standards and parameters for an Environmental
Impact Statement. What is an Environmental Impact Statement? It says to look at
the practices and the things that are occurring on a comprehensive basis, the
cumulative effect, and how it impacts health and safety is part of that, right? If we
do any study that does not fit that national parameter, then I am afraid it will lack
credibility to go beyond. In all due respect, it feels like Councilmember Yukimura is
trying to create the environmental structure of this here at the table and
brainstorming. She is a really smart woman, but we have forty (40) years of
Environmental Law. I believe any credible consultant we hire will tell us that; that
if you want this study to be credible, you cannot create some study in your own
image that does not have the standards that have become common in our nation,
not just our County and our State. Whether we call it that or not, it needs to have
those parameters, in my opinion, and that is what I will be working on. I want to
have a legal response from the County Attorney to specific questions and
amendments that make sure this study is credible. I do not believe it will take one
(1) year. These Environmental Impact Statements are down routinely. Some of
them are not as bold and as comprehensive as this one would be, and have a specific
purpose, but I do not believe that is a constraint to us using that template. I believe
that any credible consultant would tell us that. These are things that I am going to
work on. When the Chair indicates, I intend to make a motion to refer this to the
Committee of the Whole in three (3) weeks. That would be my suggestion. Let us
see if there is agreement on that. Thank you.
Chair Furfaro: Just from a calendar standpoint before I
recognize Mr. Kagawa, there is no referral in three (3) weeks because we will all be
eating turkey. The Committee date would be date specific. Mr. Kagawa, you have
the floor where you have an opportunity to speak on the Resolution in general.
Mr. Kagawa: Thank you. I will just summarize like the
rest of the members. I met with the State Deputy Health Director Gary Gill about a
month ago. I stated that before. One of the things as we discussed the whole Bill
No. 2491 was that we discussed the EPHIS. He stated that it would be a good thing
for Kaua`i County to go ahead and do the EPHIS with the concerns of the
community. He pointed to the Puna Geothermal EPHIS that is going. I guess he
said that it is working out well. It is not completed yet, but it was a good way to
give answers to a community that was very concerned. For this one, it is just
another case of the State Department of Health's deficiencies. We just had the talk
about the reservoirs and how they are shorthanded with engineers. Last night in
the news, they mentioned the "Hi-5" Recycling Program. Again, they are
understaffed and just paying out millions without even verifying if the counts are
COUNCIL MEETING 53 NOVEMBER 6, 2013
accurate. It is one thing after another where they have the responsibilities, but
they lack the manpower and the action. It is frustrating when we as a County are
venturing into an area of expertise that we do not have. Even when we are done
with the EPHIS, are we epidemiologists here? Are any of us epidemiologists here?
Who is going to study these findings and determine what the report says? I think
the State Department of Health should be doing the EPHIS, but they cannot
perform because they do not have enough workers. I think it should be the State
Department of Health's Epidemiologists that should be doing a lot of the work in
looking at the report and the findings, and it should be them that guide us as to
what kind of testing we are going do. They spent a lot of time, years I believe, on
monitoring our drinking water for atrazine. He testifying before us that they finally
completed it. My thing to him was, "Let us do more than. Let us start looking at
our drinking water and our soils." They have clean Water Inspectors, Soil
Inspectors, and Epidemiologists but none of them are here. They are on O`ahu or
Maui. On Kaua`i, we had an Air Quality Inspector, Rod Yama, who was here for a
long time and was a very nice guy. He was flooded with calls about smoke and dust.
He retired after many years here; I believe over thirty (30) years of service. They
have not been able to fill that position for over one (1) year. It is very frustrating
that our island is faced with such a huge issue and we do not even have the people
to call here when you have those concerns. That is why I will be supporting the
EPHIS as soon as possible because it just appears that we cannot wait for the State
to do it. I think we need to do it, but we need to have them cooperate with us along
the way. My last comment is that it is going to cost us one million dollars
($1,000,000). Again, I plead to our State Legislators that instead of using your
surplus moneys to promote new destinations in Korea and China, let us keep some
of that money here for Kaua`i when we have concerns that we need taken care of. I
think you really have to use that reserve money wisely. Basically, if your house is
not good, you take care of your house first before you throw it away elsewhere.
Thank you, Chair.
Chair Furfaro: Did you want to speak again before I do? Go
right ahead, JoAnn.
Ms. Yukimura: I think it is a good idea to defer. I will not
even ask that we actually have a vote on the amendments that I have proposed. I
think it is a good idea to put it back in Committee, but if so, it seems to me that we
should have it in Committee next week because then the Council Meeting will be
on November 20th, and that may be after we vote on the Bill.
Chair Furfaro: Since you folks are endorsing this to go to the
Committee of the Whole, let me speak to the Chairman of the Committee of the
Whole— that is me. What I just heard of all of the things that are possibly coming
through, I am going to tell you that we are not going to get where we want to be
next week. Next week, we have a special session. We are dealing on the Bill itself.
We have got back-to-back pieces here. I would like to suggest that if you want to
defer this to the Committee of the Whole, we will be through with Bill No. 2491 and
whatever its status would hopefully by the 15th of November. I would like to say
that if you are going to ask this to go into my Committee, I will accept that
responsibility, but you need to get your amendments to me by the 27th of November
because they sound like they are extensive. That would give me time to work with
our Legal Staff and Analysts to put the Resolution amendments together. I will
initiate a legal review request tomorrow to the County Attorney of the Resolution as
it stands now. I will send that under my signature. That is thirty-four (34) days
from now, December 11th, where we would take action on it. I would only ask that
COUNCIL MEETING 54 NOVEMBER 6, 2013
from you folks if you are going to send it my direction. Mr. Bynum, you have the
floor.
Mr. Bynum: Thank you for that. I want to say that I will
be working on this now. We will use this time productively. I heard your request
for a deadline on the November 27th.
Chair Furfaro: For the amendments.
Mr. Bynum: I would maybe ask for a few more business
days, maybe to the 4th of December, just because of the holiday on November 28th,
just so we can have them finalized a week in advanced. I am prepared to make that
motion if no one else wants to speak.
Mr. Bynum moved to refer Resolution No. 2013-72 to the December 11, 2013
Committee of the Whole Meeting, seconded by Ms. Yukimura.
Chair Furfaro: There is no more discussion, but you forget
the part about the deadline on amendments.
Mr. Bynum: The deadline on amendments will be on
December 4th.
Chair Furfaro: Thank you. There is no further discussion on
a deferral. This has been deferred date specific...
Mr. Rapozo: Mr. Chair, it is a referral.
Chair Furfaro: I am sorry. It is a referral.
Mr. Rapozo: Yes, just to make sure that we are all on the
same page.
Chair Furfaro: Very good. I always had problems with "r's"
and "d's," even in my signature. Okay, it is a referral. I can talk again. Please get
your amendments in to me by the agreed date of December 4th. Thank you.
The motion to refer Resolution No. 2013-72 to the December 11, 2013
Committee of the Whole Meeting was then put, and unanimously carried.
Chair Furfaro: We are going to recess for lunch. We will be
back at 1:40 p.m.
There being no objections, the meeting was recessed at 12:40 p.m.
The meeting reconvened at 1:49 p.m., and proceeded as follows:
Chair Furfaro: Jade, let us move on and do some
housekeeping for some of our communications and so forth.
COMMUNICATIONS:
C 2013-356 Communication (10/02/2013) from Council Vice Chair
Nakamura, requesting Council consideration to release the County Attorney
COUNCIL MEETING 55 NOVEMBER 6, 2013
opinion dated September 3, 2013 relating to "Whether the County has the legal
authority to establish a Cat License Fee.": Ms. Yukimura moved to approve
C 2013-356, seconded by Mr. Kagawa.
Chair Furfaro: Is there any discussion, members?
Mr. Bynum, you have the floor.
Mr. Bynum: Just for the sake of the public, Chair, could
you outline the process by which we arrive at this point?
Chair Furfaro: I would prefer that discussion come from the
Clerk as a procedural piece. Jade, may I ask you to indulge us for a moment on the
process that we approved as it relates to the request of releasing County Attorney
opinions?
JADE K. FOUNTAIN-TANIGAWA, Deputy County Clerk: Chair,
pursuant to Rules of the Council, Rule 2(a)(4), the County Council, by a vote of five
(5) of its members need to approve the release of any County Attorney opinions. We
sent a request over to the County Attorney's Office to see if they had any objections
to the release, and they responded that they did not, so it is before the body today
for a vote.
Chair Furfaro: For the public information, please note that
for our procedure, the release of County Attorney's opinion require super majority
as that is the make-up of five (5). Mr. Bynum, do you want to add to that?
Mr. Bynum: I wanted the public to understand that
initially a member sends a memo to the County Attorney, via the Chair, asking if he
has any objections to a release, and then he gives us that feedback and the Council
votes on the resolution, like we are about to. We can vote regardless of the County
Attorney's response. It is our kuleana, but in this instance, as our Deputy Clerk
said, the County Attorney has not objected to the release and neither do I. Thank
you very much.
Chair Furfaro: Is there any further discussion? Mr. Hooser.
Mr. Hooser: Yes, I have a couple of things, Chair. I
understand that it was a request from a Councilmember, but this request is not a
Councilmember at this point in time and it is on our agenda. I do not know the
purpose of the release or what the former Councilmember was hoping to
accomplish, so I am not sure if we should be dealing with it. I may not vote in
support.
Chair Furfaro: I do want to say that at the time this request
came through me, this individual was a member of Council and I did sign off on it. I
am going to treat it as if the request was made when they were a bona fide member
of the Council and that the conclusion of this is that they are basically absent, but it
was made when I signed off on it.
Mr. Hooser: I have a follow-up if I could?
Chair Furfaro: Sure.
COUNCIL MEETING 56 NOVEMBER 6, 2013
Mr. Hooser: Since the member is not here, I do not know
what the purpose of it was or whether it was to achieve some goal or objective and
what the consequences are.
Chair Furfaro: Good point.
Mr. Hooser: I have no idea whatsoever.
Chair Furfaro: Let me recognize Councilwoman Yukimura
who may have participated in the discussion.
Ms. Yukimura: Yes, Chair, I would like to add some
information in response to Councilmember Hooser's question. If you recall when we
looked at raising the license fees for dogs, there was this request that we license all
animals. I did make a commitment to license cats. We have that Bill that is soon to
be on the agenda. I think at that very meeting, the Council Vice Chair at that time
wanted to be proactive, so she sent in a request to make sure that we could work on
such an ordinance. When they came back with the opinion, she just followed her
procedures to ask for it to be released, so that is how it got on the agenda. I do want
to say that it is relevant to an upcoming bill that I will be introducing.
Chair Furfaro: You have the floor again, Mr. Hooser.
Mr. Hooser: Thank you. We have had this discussion on
other matters in terms of releasing opinions, but I am not sure what the release of
this opinion was intended to accomplish. I understand that the Council needs to
know whether we have a legal authority, but we are going to be passing a bill on cat
licenses, or considering a bill anyway. I do not know whether it is prudent or
whether it is a good idea or not. I have not really given it that consideration. It
seems like a relatively minor manner, but in the light of other discussions, I wanted
to raise that point.
Chair Furfaro: Okay. Anybody else want to say anything?
I, too, think it is somewhat manini at this point, but it is certainly important as we
move towards having a bill that would require fees for cat licensing. I am okay with
it, but again, I saw the correspondence made by the previous Councilmember. This
will require a roll call vote, so may I have a roll call vote, please?
The motion to approve C 2013-356 was then put, and carried by the following
vote:
FOR APPROVAL: Bynum, Kagawa, Rapozo, Yukimura,
Furfaro TOTAL — 5,
AGAINST APPROVAL: Hooser TOTAL — 1,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL— 0.
Chair Furfaro: The vote is recorded as 5:1. Thank you
everyone. Let us move on to our next item.
C 2013-357 Communication (10/08/2013) from the Housing Director,
requesting Council approval to sell a residential unit located at 9661 Haina Road,
Waimea, which was developed under the Neighborhood Stabilization Program
(NSP), TMK: (4) 1-2-008-007-0001, by leasehold to a participant on the Affordable
COUNCIL MEETING 57 NOVEMBER 6, 2013
Housing Program Waitlist whose household income does not exceed 120% of the
Kaua`i Median Household Income (KMHI), and to authorize the County Clerk to
sign legal documents related to this transaction: Ms. Yukimura moved to approve
C 2013-357, seconded by Mr. Bynum.
Chair Furfaro: Going any further to the Clerk's Office and
the Staff, are there any items here that we require people from the Administration
to be present that any of you are requiring? No? Okay, very good. Councilmember
Yukimura, did you want the floor?
Ms. Yukimura: No. I think this is a regular request in our
program to give leaseholds to qualifying buyers, so I think we are okay. Thank you.
Chair Furfaro: Okay. There is no one who wants to present
testimony so let us do a roll call, please.
The motion to approve C 2013-357 was then put, and carried by the following
vote:
FOR APPROVAL: Bynum, Hooser, Kagawa, Rapozo,
Yukimura, Furfaro TOTAL— 6,
AGAINST APPROVAL: None TOTAL — 0,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL — 0.
C 2013-358 Communication (10/09/2013) from the Housing Director,
requesting Council approval to decline the repurchase of property in Ho`okena at
Puhi, 2080 Manawalea Street, Unit No. 708, Lihu`e, Hawai`i, and grant the owner a
one-year waiver of the buyback to allow a market sale by the owner: Ms. Yukimura
moved to approve C 2013-358, seconded by Mr. Bynum, and carried by the following
vote:
FOR APPROVAL: Bynum, Hooser, Kagawa, Rapozo,
Yukimura, Furfaro TOTAL — 6,
AGAINST APPROVAL: None TOTAL — 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL — 0.
C 2013-359 Communication (10/11/2013) from the Budget and
Purchasing Director, transmitting for Council information, the First Quarter
Statement of Equipment Purchases for Fiscal Year 2013-2014, pursuant to
Section 17 of Ordinance No. B-2013-753, the Operating Budget of the County of
Kaua`i for Fiscal Year 2013-2014: Ms. Yukimura moved to receive C 2013-359 for
the record, seconded by Mr. Rapozo, and unanimously carried.
Chair Furfaro: We will go to our Legal Document next, but
before we do, it is my understanding that between Amy and the Building Division is
that you folks have had some discussion and we do not need anybody over for this.
Very good. Let us go to our Legal Documents, Jade.
LEGAL DOCUMENT:
C 2013-360 Communication (10/15/2013) from the Director of Parks
and Recreation, recommending Council approval of a Second Amendment to
COUNCIL MEETING 58 NOVEMBER 6, 2013
Purchase Agreement Dated May 17, 2010, made by and between the County of
Kaua`i and the Apartment Owners of Kapa'a Sands to amend the closing date from
sixty (60) days to one hundred twenty (120) days following subdivision approval:
Mr. Bynum moved to approve C 2013-360, seconded by Ms. Yukimura, and carried
by the following vote:
FOR APPROVAL: Bynum, Hooser, Kagawa, Rapozo,
Yukimura, Furfaro TOTAL — 6,
AGAINST APPROVAL: None TOTAL — 0,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL — 0.
Chair Furfaro: Thank you very much. Let us go to Claims,
please.
CLAIMS:
C 2013-361 Communication (10/18/2013) from the Deputy County
Clerk, transmitting a claim filed against the County of Kaua`i by
Tracie K. Sakamoto, for damages to her vehicle, pursuant to Section 23.06, Charter
of the County of Kaua`i: Mr. Rapozo moved to refer C 2013-361 to the County
Attorney's Office for disposition and/or report back to the Council, seconded by
Ms. Yukimura, and unanimously carried.
C 2013-362 Communication (10/29/2013) from the Deputy County
Clerk, transmitting a claim filed against the County of Kaua`i by
Farmers Insurance of Hawai`i, Inc. as subrogee of Miyoshi Matsuda, for damages to
his vehicle, pursuant to Section 23.06, Charter of the County of Kaua`i: Mr. Rapozo
moved to refer C 2013-362 to the County Attorney's Office for disposition and/or
report back to the Council, seconded by Ms. Yukimura, and unanimously carried.
BILLS FOR FIRST READING:
Proposed Draft Bill (No. 2509) —A BILL FOR AN ORDINANCE AMENDING
SECTION 21-9.2(D) OF THE KAUAI COUNTY CODE 1987, AS AMENDED,
RELATING TO INTEGRATED SOLID WASTE MANAGEMENT: Ms. Yukimura
moved for passage of Proposed Draft Bill No. 2509 on first reading, that it be
ordered to print, that a public hearing thereon be scheduled for December 4, 2013,
and that it thereafter be referred to the Environmental Services / Public Safety /
Community Assistance Committee, seconded by Mr. Kagawa, and carried by the
following vote:
FOR PASSAGE: Bynum, Hooser, Kagawa, Rapozo,
Yukimura, Furfaro TOTAL — 6,
AGAINST PASSAGE: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL — 0.
Proposed Draft Bill (No. 2510) — A BILL FOR AN ORDINANCE APPROVING
A COLLECTIVE BARGAINING AGREEMENT FOR BARGAINING UNIT 13
BETWEEN JULY 1, 2013 AND JUNE 30, 2017: Mr. Bynum moved for passage of
Proposed Draft Bill No. 2510 on first reading, that it be ordered to print, that a
public hearing thereon be scheduled for December 4, 2013, and that it thereafter be
COUNCIL MEETING 59 NOVEMBER 6, 2013
referred to the Committee of the Whole, seconded by Ms. Yukimura, and carried by
the following vote:
FOR PASSAGE: Bynum, Hooser, Kagawa, Rapozo,
Yukimura, Furfaro TOTAL — 6,
AGAINST PASSAGE: None TOTAL — 0,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL — 0.
Proposed Draft Bill (No. 2511) — A BILL FOR AN ORDINANCE AMENDING
ORDINANCE NO. B-2013-753, AS AMENDED, RELATING TO THE OPERATING
BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL
YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE AMOUNTS
ESTIMATED IN THE GENERAL FUND, SOLID WASTE FUND, SEWER FUND,
GOLF FUND, HIGHWAY FUND, HOUSING AND COMMUNITY
DEVELOPMENT FUND, KALEPA HOUSING FUND, AND PAANAU HOUSING
FUND: Mr. Bynum moved for passage of Proposed Draft Bill No. 2511 on first
reading, that it be ordered to print, that a public hearing thereon be scheduled for
December 4, 2013, and that it thereafter be referred to the Finance & Economic
Development (Tourism / Visitor Industry / Small Business Development / Sports &
Recreation Development / Other Economic Development Areas) Committee,
seconded by Ms. Yukimura, and carried by the following vote:
FOR PASSAGE: Bynum, Hooser, Kagawa, Rapozo,
Yukimura, Furfaro TOTAL — 6,
AGAINST PASSAGE: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL — 0.
Chair Furfaro: Okay. Do we need to go back to
Communications before we go to Executive Session (ES)?
Ms. Fountain-Tanigawa: We need to have a briefing in Executive
Session on ES-684 before the open session item.
Chair Furfaro: Then we come back for the open session
item?
Ms. Fountain-Tanigawa: Yes. We have two (2) Executive Sessions
scheduled.
Chair Furfaro: Okay. Can I have the County Attorney up,
please?
There being no objections, the rules were suspended.
ALFRED B. CASTILLO, JR., County Attorney: Good afternoon, Council
Chair and Councilmembers. County Attorney, Al Castillo. Council Chair, I will
read both items.
Chair Furfaro: Yes, please go ahead.
COUNCIL MEETING 60 NOVEMBER 6, 2013
EXECUTIVE SESSION:
ES-684 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and
92-5(a)(4) and (8), and Kaua`i County Charter Section 3.07(E), the purpose of this
Executive Session is to provide the Council with a briefing on County of Kaua`i vs.
Michael Guard Sheehan, et al., Civil No. 11-1-0098 (Condemnation), Fifth Circuit
Court, and related matters. This briefing and consultation involves consideration of
the powers, duties, privileges, immunities and/or liabilities of the Council and the
County as they relate to this agenda item.
ES-685 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and
92-5(a)(2) & (4) and Kaua`i County Charter Section 3.07(E), the Office of the County
Attorney, on behalf of the Council, requests an Executive Session with the Council,
to consider the evaluation, dismissal, or discipline of the County Auditor or of
charges brought against the County Auditor, where consideration of matters
affecting privacy will be involved, provided that if the individual concerned requests
an open meeting, an open meeting shall be held; and to consult with the Council's
attorney regarding questions and issues pertaining to the Council's and County's
powers, duties, privileges, immunities, and liabilities as it relates to this agenda
item, and to deliberate and take such action as deemed appropriate.
There being no objections, the meeting was called back to order, and
proceeded as follows:
Mr. Kagawa moved to convene into Executive Session for ES-684 and ES-685,
seconded by Mr. Rapozo, and carried by the following vote:
FOR EXECUTIVE SESSION: Bynum, Hooser, Kagawa, Rapozo,
Yukimura, Furfaro TOTAL— 6,
AGAINST EXECUTIVE SESSION: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL — 0.
Chair Furfaro: Thank you. I would like for us to be in the
Executive Chambers by 2:15 p.m. We will come back to do some business.
There being no objections, the meeting was recessed at 2:06 p.m.
The meeting reconvened at 3:37 p.m., and proceeded as follows:
(Mr. Kagawa was noted as excused at 3:20 p.m. while the Council was
convened in Executive Session.)
Chair Furfaro: We are back in session. Jade, we are going
back to page two (2) for some unfinished business for C 2013-351. Can you go ahead
and read that item for us, please?
There being no objections, C 2013-351 was taken out of order.
COMMUNICATIONS:
C 2013-351 Communication (10/11/2013) from the County Attorney,
requesting Council approval to expend additional funds up to $40,000 for Special
Counsel's continued services provided in County of Kaua`i vs. Michael Guard
COUNCIL MEETING 61 NOVEMBER 6, 2013
Sheehan, et al., Civil No. 11-1-0098 (Condemnation), Fifth Circuit Court, and
related matters: Mr. Bynum moved to approve C 2013-351, seconded by Mr. Rapozo,
and carried by the following vote:
FOR APPROVAL: Bynum, Hooser, Rapozo, Yukimura,
Furfaro TOTAL — 5,
AGAINST APPROVAL: None TOTAL — 0,
EXCUSED & NOT VOTING: Kagawa TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL — 0.
Chair Furfaro: Thank you very much. I believe that
concludes our business for today.
Ms. Fountain-Tanigawa: Yes, it does.
Chair Furfaro: Okay. I am going to adjourn today's Council
Meeting. Thank you very much.
ADJOURNMENT:
There being no further business, the meeting was adjourned at 3:39 p.m.
Resp: tfully submitted,
4I -
JAD PK. • •NTAIN-TANIGAWA
Deputy County Clerk
:cy
ATTACHMENT 1
(November 6, 2013)
FLOOR AMENDMENT
Resolution No. 2013-72, Relating To Implementing An Environmental And Public
Health Impacts Study (EPHIS), Via Formation Of A Pesticide And Genetic
Engineering Joint Fact Finding Group (JFFG)
Introduced by: JOANN A. YUKIMURA
Amend Resolution No. 2013-72 in its entirety as follows:
"WHEREAS, there is great concern about the environmental and public
health impacts of large-scale agricultural operations that apply restricted use
pesticides on Kaua`i, including operations growing genetically engineered crops. Of
particular concern is the frequency, type, amount, and reporting of pesticides used,
and the resulting effects on humans and the environment; and
WHEREAS, four (4) of those companies engage in genetic engineering
agriculture, and lease over fifteen thousand (15,000) acres of agricultural lands on
Kaua`i, with half of the lands used in the production of genetically engineered
canola, soybeans, sunflower, rice, and corn, at any given time; and
WHEREAS, Kaua`i's tropical climate, which accommodates three (3) or
four (4) growing cycles per year, and the experimental processes involved in
developing parent generations of herbicide and pesticide resistant seed, contribute
to the high use of pesticides on the island; and
WHEREAS, public testimony received in response to Kaua`i County Council
Bill No. 2491, as amended (hereinafter referred to as "Bill No. 2491"), has raised
concerns about potential human health impacts, including a possible high incidence
of asthma, cancer, miscarriages, and birth defects; environmental impacts,
including pesticide residues detected in soil and air, drinking water, streams, and
near-shore water; unwanted cross-pollination; and potential impacts on sea urchins,
coral reefs, bees, and biodiversity; and quality of life issues, including the persistent
presence of dust and odors; and
WHEREAS, public testimony received in response to Bill No. 2491 has also
raised particular concerns about the current and former usage on Kauai of certain
specific pesticides, such as Atrazine, Bifenthrin, Chlorpyrifos (Lorsban),
Clothianidin, Glyphosate (Roundup), Paraquat, and "2,4-D"; and
WHEREAS, both opponents and proponents of Bill No. 2491 agree that there
exists a need for more quantitative and qualitative data, including environmental
and ecosystems analysis and the impacts of chronic and long-term exposure to
herbicides and pesticides on the health and safety of Kaua`i residents, to better
define the problems, and to guide public policymakers to more effective responses
and regulatory actions; and
1
WHEREAS, the Kaua`i County Council wishes to initiate a process of inquiry
and investigation that will provide answers to key questions raised by Bill No. 2491
in a transparent and credible process yielding results that all stakeholders can
respect as a basis for future legislative and regulatory actions; now, therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF KAUAI,
STATE OF HAWAII, that the County of Kaua`i fund a qualified neutral
[consultant] facilitator .to convene and facilitate a Pesticide and Genetic
Engineering Joint Fact Finding Group (JFFG) comprised of knowledgeable
scientific experts, medical experts, environmental experts, and community
stakeholders, to design and oversee a focused, accountable, and credible
Environmental and Public Health Impacts Study (EPHIS).
BE IT FURTHER RESOLVED, that the County of Kaua`i shall issue a
Request for Qualifications to hire the [consultant] facilitator to organize and
facilitate the initial process whereby the JFFG will define the scope and parameters
of the EPHIS, through the following scope of work:
1) Form a Pesticide and Genetic Engineering Joint Fact Finding Group of
twelve (12) to fifteen (15) scientific experts, medical clinicians or public
health experts, environmental experts, and community stakeholders,
who are knowledgeable, respected, representative of the community,
and willing to commit substantial time and energy to the project;
2) Undertake sustained and science-centered deliberations to identify the
highest priority environmental and public health questions pertinent to
the pesticides used and genetically modified crops grown by large-scale
commercial agricultural entities on Kaua`i, and in comparison to the
production of other agricultural products; this shall include, but not be
limited to, Atrazine, Bifenthrin, Chlorpyrifos (Lorsban), Clothianidin,
Glyphosate (Roundup), Paraquat, and "2,4-D";
3) Develop recommendations as to the highest priority questions to be
asked; preferred methodologies for studies, monitoring, and
epidemiological analysis; and standards to be used for recommended
scientific studies; including the thresholds of safety or danger related to
the presence of identified pesticides;
4) Assemble an inventory of reliable existing studies, preferably but not
exclusively peer reviewed, available to address the identified
environmental and public health priority questions;
5) Estimate costs and timelines of recommended scientific and monitoring
studies;
6) Identify possible sources of funding for recommended scientific and
monitoring studies;
7) Provide public posted agenda and written minutes of each meeting to
the County;
2
8) Present to the Mayor, County Council, and the community, the draft
and final [study] scope of work and parameters of the EPHIS with
recommendations no later than one (1) year from the Notice to Proceed
to [consultant] facilitator following the securing of funding;
BE IT FURTHER RESOLVED, that once the scope and design of the EPHIS
are completed by the Joint Fact Finding Group, the EPHIS shall be commissioned
by the County, and conducted by a professional consultant with oversight by the
Joint Fact Finding Group. Funding shall be secured from a variety of sources and
diverse stakeholders willing to support a community process built on community
consensus. Anticipated timetable shall be eighteen (18) months from the issuance
of the relevant Notice to Proceed following the securing of funding for the study, to
presentation of the report to the Mayor, County Council, and the community.
BE IT FURTHER RESOLVED, that copies of this Resolution be sent to all
members of the State House of Representatives and State Senate, Governor
Neil Abercrombie, Mayor Bernard P. Carvalho, Jr., the Chairperson of the
Department of Agriculture, and the Director of the Department of Health."
(Material to be deleted is bracketed. New material to be added is underscored.)
V:\Amendments\2012-2014 term\Reso No. 2013-72 doc. JY\AO:lc
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