The staff of the Commission on Water Resource Management is too nice. That was the general consensus of commissioners at a May 16 meeting where, in one violation case after another, fine recommendations were minimal, to say the least.
In the first case, involving unauthorized well construction and pump installation on the Big Island, staff recommended a fine of $400 for landowner John Pataye and $500 each for the contractors who drilled the well in 2007 and installed the pump in 2008.
Pataye discovered the violations as he was preparing to sell his Kona property and submitted an application in March 2011 for an after-the-fact permit.
Commission staff recommended that he be granted a permit after he pays his fine. Should the contractors fail to pay their fines, CWRM staff would not process any future permit applications until they were paid.
When it came time to vote, commissioner William Balfour said he was troubled by what had been proposed, given the fact that the commission has the ability to impose daily fines of up to $5,000 per violation. As far as he was concerned, the contractors should have known better.
“Somehow, with all these after-the-fact permits, we’ve got to stop saying, ‘Oh, naughty, naughty,’ and slap them on the wrist,” he said.
Outgoing commissioner Lawrence Miike, attending his last meeting, agreed.
Despite an amendment to statutes increasing the possible maximum fine from $1,000 to $5,000 a day, “we’re still with a $250 minimum a day and we never extend it for more than a day,” he said. (Under the commission’s internal penalty policy, $250 is the minimum fine, although mitigative factors — i.e., good faith efforts to remedy violations or self-reporting in a timely manner — can reduce the amount.)
Because the general contractor, Metzler Contracting, had informed Pataye that no permits were needed for the well, Miike didn’t think Pataye should be fined a similar amount as the contractors.
“They’re probably going to get a profit on this more than the fine,” he said. Unless CWRM revises its guidelines for fines, “it’s worth it to try to get away with it.”
Craig Mickelson of Metzler Contracting, which installed the pump, said the company accepted responsibility for “this first and presumably only error of this nature on our part.”
No one from Delima Drilling, which drilled the well without having a license, attended the meeting.
Miike suggested voting on Pataye’s fine now and dealing with the contractors’ fine at a later meeting.
During public testimony, independent consultant Jonathan Scheuer, who tracks water issues, pointed out that one of the reasons why the commission can’t do more to meet its duties is a lack of funds.
Applying the maximum possible fine to the maximum number of days of potential violation in this case would net a fine of around $18 million, he said.
“A $900 fine is one 2,000th of the possible fine. The house is being sold for $15 million. It’s not a not a question of whether you’re going against a small grandma farmer who doesn’t have the resources,” he said.
In the end, the commission voted to approve a fine of $400 to Pataye and hold off on fining the contractors.
Later in the meeting, the commission approved two after-the-fact stream channel alteration permits (SCAP) and imposed fines of just $50 in each case.
The first related to an unauthorized rock retaining wall built along a branch of Ainako Stream in Hilo on property owned by state Sen. Malama Solomon. CWRM staff discovered the wall while conducting a field investigation for a contested case hearing over a stream diversion in the area.
With approval from the County of Hawai`i, the wall was built in 2008 to prevent flooding. Solomon, however, failed to get permission from the Water Commission.
Starting with a minimum fine of $250, CWRM recommended reducing the fine to $50 for two reasons: the wall was an insignificant impact on the resource and Solomon made a good faith effort to remedy the violation once it was discovered.
“My only issue is what we talked about at the very beginning. I agree with the analysis, but in the future, I’d like to see those fines being more. My problem is a generic one about the fine levels across the board,” Miike said.
Balfour noted that Solomon had submitted and received a grading and building permit from the county for the work.
“It seems to me, if we’re going to fine somebody, we should fine the County of Hawai`i. They approved everything. Quite frankly, the $50 fine should be waived,” he said.
In the end, however, the commission approved staff’s recommendation.
“Senator Solomon, you cannot have dinner one night at a nice restaurant,” Miike joked.
The final violation case involved the installation of a 30-inch metal pipe across an unnamed Waioli Stream channel in Hanalei, Kaua`i, some 20 years ago. The commission applied the same fine structure as the one used in Solomon’s case, coming up with a total fine of $50.
Ted Yamamura, the commission’s newest member, again stressed the need to revisit the fine issue. “There’s no teeth in this,” he said.
“How about $50.50? … These [fines] are not even a slap on the wrist,” Miike added.
— Teresa Dawson
Volume 22, Number 11 June 2012