If the state’s Commission for Water Resource Management decides to designate the Keauhou aquifer a water management area, well owners and developers are looking at a potentially lengthy and expensive process to determine who has the right to use water in the area.
State and county officials, as well as a former state deputy attorney general and Maui County’s former Water Supply manager spoke about the designation at a Kona Roundtable meeting at the West Hawaii Civic Center Wednesday morning.
One of the last questions the panelists answered was what West Hawaii residents could do to convince the commission to deny the petition, which the National Park Service filed last year.
“The more information you have, the more informed people are, the better,” said Roy Hardy, the commission’s ground water program manager. “If we don’t have all that information, there’s always going to be someone (saying) ‘it’s really this,’ a sky is falling kind of thing.”
The commissioners want to know “what are the stresses on the natural resource,” Hardy said, adding that he needs the county to come up with the most accurate information as possible. “Cumulatively it can be a lot, in some areas at least. To manage the situation, to go out and quantify and measure the situation. If people are comfortable with (the amount being used), (if) it’s not this big, gray area, it will be less worry, that we’re not really headed for the cliff or bad things are coming.”
Yvonne Izu, an attorney who previously was the commission’s deputy director, as well as an attorney in the Attorney General’s Office, said that if someone seeks a contested case against a developer applying for new water usage, the battle could get pricey. A simpler contested case, such as one for a project going before the Board of Land and Natural Resources, could cost $100,000 or more. The water use cases are far more complex and could be much more expensive.
“You wind up with a battle of experts,” Izu said. “One of the important issues is, how does taking water out of the ground affect the nearshore environment? You’re going to have to have marine biologists tell you what’s going to happen. A lot of times, the opponents have their own hydrologists, marine biologists and cultural experts.”
The contested cases don’t always end with a win for the applicant, either, Izu warned. She worked on a Molokai case in which a developer spent three years to complete the case and subsequent appeal. Eventually, the Hawaii Supreme Court said the developer would need to start over.
“The developer said, ‘Screw it, we’re not going to do it again,’” Izu said.
The commission is set to decide in December whether to continue investigating the designation request. If commissioners say yes, then they have 90 days to decide whether the Keauhou aquifer, which runs from about Makalawena to Kealakekua, should get the special designation. If it does, all existing water users, except individual domestic users and people with catchment systems, will need to apply to the commission for a permit to use the amount of water they have already been using, Hardy said.
Izu said the application must be for water being used in the same way, as well. A developer watering landscaping can’t apply for a permit to use that water for urban use, for example.
When a designation was put in place on Maui in 2003, the Maui Department of Water Supply missed the one-year deadline to apply for existing uses for one of the eight permits it submitted, former Manager Jeff Eng said. That meant that application joined the queue with all the new use applications. It took his department more than three years to resolve the final application, he said.
During that time, his department was in limbo, as were any proposed developments, while they waited for resolution. The county could give out new water meters to customers who were ready to connect, but it could not give the reservations to projects that were not yet started, he said.
Izu explained another factor that can impact whether a new applicant is successful in getting water commitments. According to the Hawaii Supreme Court and the commission, the Department of Hawaiian Home Land’s water usage takes precedent over other new uses, even if DHHL officials can’t say when they’ll begin to use the water. In a Molokai case, officials estimated the sustainable yield of water was 5 million gallons per day. The existing usage was 3 million gallons per day and DHHL applied to use the remaining 2 million gallons per day. Until the commission decided how much water DHHL actually would get, no other new applications could be approved.
Sustainable yield for the Keauhou aquifer is about 38 million gallons per day, Hardy said. Existing use is about 40 percent of that. Commission staff noted that the National Park Service’s petition does seem to meet five of the eight criteria to be considered when a designation is requested. The criteria include increasing water use approaching the sustainable yield level, saltwater encroachment in the fresh water, the potential for new developments pushing the use in excess of the sustainable yield, disputes over the impact of ground water use and waste, with Kona uses about 2.5 times more water than other areas of the county.
Antonio said it makes sense that Kona uses more water than other parts of the island, because West Hawaii is drier than East Hawaii.