If you think public agencies are looking out for our intersts with respect to water, think again.
The section on water costs raises some questions about whether the Consumer Advocate and Public Utilities Commission are as effective in protecting the public interest as they should be. They weren't even willing to condition the rate increase on Acree immediately beginning work on bringing the third well into production, to ensure an uninterrupted water supply...and that was when one of the pumps could deliver only about 800,000 gallons a day. A few weeks after our testimony asking for this, one of the pumps did break down, and it took weeks to get a replacement from the Mainland. If it had been the larger pump, we could well have run out of water.
Here is some additional material on agency oversight, adapted from the water report referred to in the section on long-term water supply:
Many people assume that governmental agencies would not give approvals for a development that did not have adequate water. Yet the County for many years had a policy that 600 gpd per lot was all that a developer had to supply. That was based on an assumed average consumption of 400 gpd, plus 50% for peak usage.
In 1991, former Manager of the County Department of Water Supply Bill Sewake stated that "water use estimates for each development is made on a case-by-case basis." That certainly did not seem to be true for Kohala Ranch. In recent years the County has required 1200 gpd in certain cases, but that's still well below what Kohala Ranch owners use. New buyers are not made aware that the water meter application for their lot says their allocation is only 20% of the long-term Kohala Ranch average as reported in the developer.'s 2002 Project District application.
Sewake went on to say that "[i]n the case of Kohala Ranch, the most logical method would be to use water usage data from the existing households, unless the proposed developments have different lot sizes or the developer is going to do something different such as using a separate irrigation system or other methods to reduce domestic water use." It isn't clear how far he thought it would be reasonable for the developer to go in bringing about a cut in demand.
Ordinance 866, which zoned Projects I, II and III, and Ordinance 92-40, which zoned the Project IV urban area, required that Wells 3 and 4 be completely developed, or that a bond or letter of credit be submitted, before the zoning became effective. This should have included storage, treatment, transmission and distribution systems, but the letters of credit that were submitted did not cover all these things. The County accepted them anyway, and it looks as though it noticed they had expired only in response to our inquiry.
It should be borne in mind that there is no government agency that does a validity check on the hydrology report that a developer submits. If the developer can find a consultant who appears to have some water expertise and who will write a report saying there's enough water, it will be accepted. No matter how many flaws in the report may be pointed out in years of testimony, the County is not likely to change its position.
Nor did the County take notice when the Project District application gave strong indications that water "management" measures would likely have to be taken which could ultimately impact some 2500 households. If water resources prove inadequate, it is the County's policy that developers and/or the affected consumers must fund new water development, not the taxpayers.
Thus far, there is no indication that the developer will be required to fund anything beyond outfitting and hooking up existing wells...and it remains to be seen whether this will be accomplished in a timely manner.
The County does have the power to refuse to issue subdivision permits if it finds there is not enough water. In testimony before the Land Use Commission in 2002, attorney Ben Tsukazaki, representing the Kohala Ranch developer, said "(i)f the concern is: Can the project be developed without adequate water? The answer is no. Because although the Petitioner has demonstrated the adequate quantity and quality of potable water resources, as the project is developed it cannot develop and subdivide lots until further assurances and further proof, so to speak, are provided to the county . . . .The county will not grant its subdivision approval unless it's demonstrated there is adequate water to serve that particular subdivision. So there are safeguards."
County Code Section 25-2-75 (a) provides that the Planning Director may make plan approval contingent upon "conditions or changes in the proposal which, in the director's opinion, are necessary to carry out and further the purposes of this chapter." Section 25-2-76 (b) reiterates this but uses the stronger language that the director "shall" require such conditions or changes. Section 25-1-2 (b) says that the purpose of the chapter is to regulate a variety of land use factors - including population density - in order to promote the public welfare, and that this takes precedence over any other part of the County Code. Section 25-2-2 says "Any permit or license, if issued in conflict with the provisions of this chapter, shall be void."
These provisions seem to confirm Ben Tsukazaki's statement to the Land Use Commission that Project IV development could be stopped if it there were indications of insufficient water, regardless of what determinations had been made about it in the past. The Planning Director also verbally confirmed this in a personal communication. The full water report this section is taken from demonstrates a high probability that the water supply is not adequate, so the Planning Director's failure to act needs to be explained.
The State Commission on Water Resource Management (CWRM) can declare a Water Management Area (WMA) if it feels there is danger of overexploitation of a water resource. They even have the power to stop development, if that seems called for. But they turned down a request to declare Kohala Ranch and environs a WMA in 1992, because it was their policy not to do so until they foresaw at least 90% utilization of an entire aquifer. KRWC pumpage could totally deplete its groundwater resource without causing usage on the entire 17-mile-long Mahukona Aquifer to reach anywhere near 90% utilization.
What CWRM's Administrative Rules actually say is that a WMA can be declared when projected usage may cause 90% utilization of the proposed water management area. There is no requirement that that be an entire aquifer. Other reasons that may be cited are prospective water quality degradation, diminishing supply, or serious disputes over use of the resource. This gives CWRM the authority to act in our case, on several grounds, if the experts are right about where we're likely headed.
In its Waiahole Ditch decision, the Hawai'i Supreme Court cautioned against waiting for scientific certainty (p. 13) and said "[t]he constitutional framers and the legislature designated the Commission as an instrument for judicious planning and regulation, rather than crisis management." (p. 180)
CWRM itself echoes this principle in the Water Resources Protection Plan: "[w]ater conservation cannot be regarded as a substitute for a utility's obligation to maintain an adequate reserve capacity. Conservation under normal conditions would make conservation under drought conditions more difficult. Without a reserve capacity, water shortages may become more frequent. This must be kept in mind in any long-range water supply planning program."
In other words, it would violate state policy to proceed with a level of development that is sustainable only by means of the kinds of measures suggested in the Heathers II covenants: "[KRWC] has the right to restrict or condition usage to amounts, impose penalties, charge rate tiers, and implement other action to control amounts of water usage."
We've already seen the water company apply for a draconian tiered rate structure. There could be rationing, fines, even cutoffs...and this applies to all KRWC's customers. If there is a water shortage, the State has the power to declare an emergency and to order the "apportioning, rotating, limiting, or prohibiting the use of water resources" in the area. But the State's fiduciary responsibility us is to see that it doesn't come to that.