One of the biggest compromises made to achieve enactment of the Hawai`i Water Code in 1987 was the provision for a system of designating so-called Water Management Areas.
The original idea of the state Advisory Study Commission on Water Resources, established by the Legislature to draft a Water Code, was that all water should be regulated by the Commission on Water Resource Management. Counties and large agricultural users did not agree. A deal was struck: full regulatory control over water use would be exercised by the Commission only in areas where usage threatened to impair the quality or quantity of developable water.
The code lists conditions that can trigger designation of Water Management Areas. For ground water, designation may occur, among other times, when existing or planned use causes withdrawals to reach 90 percent of the sustainable yield of aquifers in the proposed WMA; water quality is threatened; when water is being wasted or recklessly withdrawn; or serious disputes over water use exist. WMAs for surface water can be designated when, for example, diversions of stream water threaten existing instream uses, or when serious disputes over the use of surface water occur.
So far, the only WMAs are on O`ahu: the Honolulu, Pearl Harbor, and Central aquifers. They were in fact set aside for water management purposes years before the Water Code was passed, and the Commission on Water Resource Management did not designate them so much as it inherited them. To date, the Commission has not designated any Water Management Area, although three petitions for designation have recently been brought before it.
Many of the people involved in negotiations over the Water Code have been critical of the very idea of designation. Far from it being a guide for reasonable planning and management of water resources, they say, it is rather a crisis management tool — or worse, a post-crisis management tool. By delaying the onset of the Commission’s full administrative control until water sources are being taxed to near capacity, water cannot be reserved for future uses in the public interest (such as preservation of environmental quality, cheap water for low-cost housing developments, or continuation of traditional Hawaiian practices).
In other words, the Commission cannot step in to “ensure reasonable-beneficial use of the water resources in the public interest” (§174C-41(a)) until hardly any water is left to be reserved for those “reasonable-beneficial uses.”
Maui: Noble goals on shaky ground
Maui County has tried to get around this problem. In the ordinance adopting its Water Use and Development Plan, it has given itself the power to allocate ground water resources long before the conditions for designation set in the Water Code would be triggered.
Under the Maui ordinance, when ground water withdrawals reach 60 percent of the sustainable yield in an area, the county Board of Water Supply is to notify the Council. The Council then “shall determine the allocation of ground water for each of the various land use categories contained in the community plans, to be applied when withdrawal reaches seventy percent of the sustainable yield of an area…. No permit shall be granted to those projects where estimated ground water use would cause the allocation of ground water for its land use category to be exceeded.”
The county, in other words, would use its permit process as a means of reserving water for all land uses approved in the community plans. This way, county officials say, they can make sure that water is reserved for such worthy purposes as affordable housing.
While the sentiment is admirable — and the Maui County Council, alone among the four counties, should be commended for recognizing a problem here — the legal basis for county allocation of water is shaky. For a fuller discussion of the legal implications, readers can consult the recommendation on the Maui plan provided to the Commission by its staff at the June 27 meeting (copies available in the DOWALD office files).
Still, we will try to summarize two of state’s objections. First, while the county has every right to withhold building permits and the like if it believes that the project will mean no water will be available for future worthy purposes, “allocation” is a new animal in the bestiary of water rights. People who have water allocated to them by the county might lay claim to that water as a right if designation were to occur. But state law does not recognize allocation, and so the Commission would not be under any obligation to respect it. The possibilities of future lawsuits are thus multiplied by the Maui ordinance.
Second, the Maui ordinance would have the county set itself up as the adjudicator in conflicts that the county itself, as a major developer of water, has an interest in. That conflict of interest again makes the ordinance vulnerable to legal challenge.
From a practical standpoint, the Maui ordinance also has drawbacks. For example, the ordinance calls for determining the “allocation of ground water for each of the various land use categories contained in the community plans” when 70 percent of sustainable yield in an area is reached. But “land use categories” may not be terribly helpful as a means of reserving water for such purposes as affordable housing or diversified agriculture.
Petitions for designation
The designation process, the Water Code states, “may be initiated upon recommendation by the chairperson [of the Commission] or by written petition.” In the last year, the Commission has received petitions for designation of Water Management Areas for the island of Lana`i; the Windward side of O`ahu (surface and ground water); and the island of Moloka`i (also surface and ground water).
The Lana`i petition was recently settled. The petition was strenuously opposed by the Lanai Company, a spinoff of Oceanic Properties, which is the Dole subsidiary developing the two large resorts on Lana`i. The Commission held off designating the island, but is requiring the Lanai Company to provide regular, detailed reports on water withdrawals.
The petition to designate Windward O`ahu is to be taken up by the Commission at its August meeting. At its June meeting, over objections from Maui County, the Commission voted to continue its investigation into the Moloka`i petition.
Volume 1, Number 2 August 1990