What’s to be done when the state doesn’t follow its own rules? And not just the state, but county agencies and the majority of other holders of water use permits?
The question arises in the course of reading the recent report by the Commission on Water Resource Management on the status of water use permits issued in its first two decades. The commission is required by law to make such a report to the Legislature at least once every 20 years. This report covers the period from 1987, when the commission was launched, to June 15, 2007.
Here are some of the chief findings, based on a review of 359 active permits by the commission’s contractor, Brown and Caldwell, Inc. (There were actually 403 permits issued, but the contractor was unable to check on the status of 44 wells, owned by 35 permittees, “despite best good-faith efforts either because of a complete lack of response from permit holders, or because scheduled visits were cancelled by the permit holder with no further correspondence.”)
- Holders of just 16 percent (56 permits) were found to be in full compliance with permit terms and conditions.
- Two-thirds of permit holders (240 permits, or 67 percent) did not submit required reports.
- For more than a third (129 permits, or 36 percent), information on the location of the water source or place of its use in the commission’s files did not match actual conditions.
- Eleven percent (41 permit holders) had engaged in pumping more water than allowed by their permits, with overpumping continuing to occur in the case of 27 permits.
Among the permit holders who did not cooperate with the investigation are some of the biggest water users in the state – including state agencies. They include the Agribusiness Development Corp., the state entity that runs the Waiahole Ditch on O`ahu; the Kahala Hotel and Resort, H-POWER, the Department of Hawaiian Homelands on O`ahu, the Honolulu departments of Parks and Recreation and Wastewater Management, the Honolulu Board of Water Supply, and the Maui Department of Water Supply. The Department of Land and Natural Resources’ Divison of State Parks also appears on the list of non-cooperating agencies, but, according to DLNR spokesperson Deborah Ward, “commission staff had been working closely with State Parks staff and field-investigated this [Parks Division] well on a different issue. Therefore, we did not require the consultant to double-investigate this well.”
Ignorance as an Excuse
By far, the majority of violations involved failures to conform with reporting requirements of water use permits. Of the 240 violations noted, 133 permits (37 percent) lacked an approved flow meter, needed to measure withdrawals. Without this, it is impossible to know if amounts of water used exceeded what was allowed. Thirty-one percent (112 permits) did not report water use at all.
“Through this review,” the report states, “several permit holders stated that they did not know of any requirements for reporting water use, chloride concentrations, and water levels as part of their permit conditions despite written documentation.” That documentation includes “at least two statewide water use reporting notifications and distribution of reporting forms efforts in 1991 and 1992” and the inclusion of water use reporting requirements in all water use permits issued.
“Also,” the report continues, “many permit holders stated that they had received no correspondence or communication from the Commission in years. This applies mainly to smaller private or commercial users; however, 62 of the reporting violations noted are associated with permits held by the municipal water agencies on O`ahu, Moloka`i, and Maui.”
Another major compliance snafu was failure to report changes in the location of the source or end use. This, Brown and Caldwell determined, was the result of initial failure to record the tax-map key locations on the permit application or in the commission’s data base, or because crop areas had been expanded beyond the original permit area, or as a result of legal subdivision or consolidation of properties.
Overpumping was defined to occur whenever the 12-month moving average of water withdrawals exceeds the permitted withdrawal rate at any time. On that basis, 47 permit holders – 13 percent – were found to have violated their permits at some point over the last four years. The Honolulu Board of Water Supply was far and away the most egregious violator in this area: of the 24 permits it holds where overpumping was occurring, 13 wells were still being overpumped at the time of the Brown and Caldwell study. In the case of two users (the BWS and the Maui Department of Water Supply), overpumping had occurred at some of its permitted sources for the entire four-year period reviewed.
One of the most important signals used in monitoring underground water sources is the level of salinity, and for this reason, the Water Commission requires permit holders to report on the chloride concentrations in each monthly report that is to be submitted. Here, again, the rule is observed in the breach, with two-thirds of permit holders failing to provide information on chlorides in the water they draw down.
Non-Use
Water Commission regulations say that when a permiot is not used for a period of four years, the commission “may permanently revoke the permit.” Brown and Caldwell identified 76 permits where water users had not drawn down their full allotment in the 2004-2007 time frame.
Of those permits, listed in Appendix GS (“4-Year Partial or Total Non-Use”), just one showed no use at all (a permit for 39,000 gallons a day held by Hawai`i Reserves). Two used between 1 and 20 percent of their allocation, 13 between 21 and 40 percent, 12 between 41 and 60 percent, 21 between 61 and 80, and 33 at 81 percent or more.
While some might conclude from this that there is water to be “found” in unused allocations that could be put to better use by other aprties, that’s not likely the case. Most of the water allocations associated with the underused permits are relatively small, like the Hawai`i Reserves permit. Just two are more than 10 million gallons a day – one to the Navy (nearly 15 million gallons a day) and another at AES Hawai`i, Inc., the coal-burning power plant in Campbell Industrial Park (13 mgd). In both cases, their reported use is in the 81-percent-plus category, suggesting there’s not a lot of margin between use and allotment.
The Brown and Caldwell report states that “further review is necessary for an across-the-board revocation of 4-year partial non-use,” although “total non-use of allocations that have not been used over a 4-year period seems to be an issue the commission can address through revocation.” But with only one small allocation falling into this category, the drawn-out process of revocation would hardly seem worth the effort.
Some of the violators employ commission members. Ward, the DLNR spokesperson, was asked whether Donna Kiyosaki would be recusing herself, since some of the violations of the Honolulu Board of Water Supply apparently occurred while she was chief engineer, or whether Chiyome Fukino, head of the Department of Health, would recuse herself if violations of the DOH came before the commission. “We will seek the advice of the Ethics Commission and/or the Department of the Attorney General’s office on any recusals,” Ward wrote in an email response.
Water use permits are issued by the commission only in water management areas, which so far have been designated for the islands of O`ahu, Moloka`i, and Maui. For the first 20 years of the commission’s existence, the designated WMAs dealt with groundwater. In 2008, the commission designated the surface water of West Maui as a water management area.
Brown and Caldwell’s contract for the report called for payment of $200,000. However, Ward said, the commission is “withholding final payment as we have identified discrepancies in the report.”
— Patricia Tummons
Volume 19, Number 11 May 2009
Leave a Reply