Water Commission Rebuffs NPS Effort To Shrink Proposed Designation Area

posted in: September 2015 | 0
Kaloko-Honokohau National Historic Park
Kaloko-Honokohau National Historic Park

Two years ago, the National Park Service petitioned the state Commission on Water Resource Management to designate the Keauhou aquifer, in West Hawai`i, as a water management area. The Park Service’s intention was to ensure that the subsurface groundwater flows to the anchialine pools and fish ponds in Kaloko-Honokohau National Historical Park would not be impaired by nearby development.

The petition has been strenuously opposed by many in the community and by the administration of Big Island mayor Billy Kenoi.

Partly in response to that, last March, the Park Service asked the Water Commission to consider designating an area smaller than the entire Keauhou aquifer system. In its petition, the Park Service took note of the fact that the Hawai`i Water Code never defines what constitutes an “area” that is subject to designation.

“When it can be reasonably determined … that the water resources in an area may be threatened by existing or proposed withdrawals or diversions of water, the commission shall designate the area for the purpose of establishing administrative control over the withdrawals and diversions of ground and surface waters in the area to ensure reasonable beneficial use of the water resources in the public interest,” the code states.

In its March petition, the Park Service observes, “Despite using the term ‘area’ three times in this section” – Section 174C-3 – “the water code does not contain any independent definition of the term.” Also, its petition notes, Water Commission rules do not spell out what an “area” is.

Commission staff looked at potential boundaries for defining an “area” for designation smaller than the entire aquifer, said Roy Hardy, acting director for the Water Commission.

“The Water Code is flexible,” he said. So the staff looked at whether designating an area defined by the basal aquifer, ahupua`a boundaries, or a combination of them might meet the needs of the Park Service.

Designating only the basal lens “doesn’t make sense,” he said. Ahupua`a boundaries make a little more seince, since they combine high level and basal sources – “but not perfectly,” Hardy said.

“Ahupua`a boundaries don’t relate that well to basal water,” he continued. “Even though they do go mauka-makai, they’re very thin.”

Hardy presented a map of a combined basal/ahupua`a area, but noted that even with this, the northern half of the park would fall outside the proposed management area.

Whatever the commission decides, he added, “it needs to make hydrologic sense.” And “chopping up” the aquifer doesn’t, he said. “Surface water disperses, and groundwater isn’t confined to the ahupua`a strips.”

“The scale we have now,” he said, referring to the entire Keauhou aquifer, “is the appropriate scale.

On top of everything else, he said, there’s another issue: “carving up hydrologic units into smaller areas sets a precedent for more localized, individual disputes, which staff doesn’t feel is the intent of the Water Code.”

Peter Fahmy, an attorney and policy analyst with the National Park Service, explained that the petition was filed “to get a sense of the authorities and flexibility that the commission has with respect to management of Hawai`i’s water resources.”

“We’re hoping that this is finding out whether we could shrink the footprint of management,” he said.

Section 174C-1, he continued, “says that the designation of an area – what we were focusing on in our petition – is for the purpose of establishing administrative control over withdrawals and diversions … in the public interest…

“As we see it, the pre-eminent consideration in defining a water management area is what is necessary to deal with the issue? Mr. Hardy referred to this as just looking at a local situation.

“Yes, that is oftentimes the case. You’re looking at a local situation when dealing with public trust resources. They may be site specific – for example, a fish pond on Moloka`i, anchialine pools, important cultural resources associated with springs – so, yeah, it is local….

“Let’s try to find a management solution that tries to deal with the issues. We don’t need to assert management over larger areas when a smaller one will do.”

Commissioner Milton Pavao, former chief engineer and manager for the Hawai`i County Department of Water Supply, questioned the Park Service on what benchmarks it had for determining the health of the resources it was attempting to protect.

The ponds are relatively healthy, replied Paula Cutillo, a Park Service hydrologist, “but we’re trying to preserve those conditions.”

Benjamin Kudo, an attorney representing the Board of Water Supply, said his client agreed with the staff’s recommendation. But he went on to offer an alternative, based on Section 174C-10, which states: “The commission shall have the jurisdiction statewide to hear any dispute regarding water resource protection, water permits, or constitutionally protected water interests, or where there is insufficient water to meet competing needs for water, whether or not the area involved has been designated as a water management area.”

“Also,” Kudo added, the commission’s rules give it “the ability to negotiate, have a hearings officer, et cetera.”

“This matter involves a small group,” he said. “We, the county, agree that the park should be protected… but we don’t agree that we should use designation to do this.”

Although some commissioners appeared ready to grab at Kudo’s proposal, the matter at hand was the Park Service’s petition.

And on that score, there were no commissioners willing to split the aquifer into smaller parts for designation – at least in this case.

Commission chair Suzanne Case pointed to the difficulty of “carving up the water management areas that we collect data on. Once you start to carve that up, you get into much more confusing pieces. The best approach is to keep it as is…”

Commissioner Jonathan Starr also agreed with the staff’s position. “I don’t see any hydrological basis for [management] on a specified area around the park, other than that that it is the park. Also, it creates a situation where we treat water management as spot zoning rather than … [using] hydrological units.”

Kamana Beamer, representing the Big Island on the commission, said he, too had “concerns about breaking up the bigger water management area… But this is just one stage in the understanding of these issues. It’s not about who controls the pond. In future meetings I hope we talk about how we manage that resource better rather than who owns it.”

The commission approved staff’s recommendation unanimously.

— Patricia Tummons

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