Staff had recommended that the Water Commission chair be given until December 2014 to make a recommendation on whether or not the designation process should proceed. This would give staff a chance to review the results of crucial studies on hydrology and evapotranspiration that aren’t expected to be completed until the fall of next year. It would also give the agency time to consult with appropriate agencies and potentially affected parties.
After a lengthy and heated discussion, the commission voted 4-3 to approve staff’s recommendation.
Initial Assessment
At the October 16 meeting, the Water Commission staff addressed the NPS’s assertions that the potential for increased pumping threatened the groundwater flow to Kaloko-Honokohau National Historic Park, as well as the natural and cultural resources that rely on that flow.
In its petition, the NPS noted that projected water demands for the Keauhou region vastly exceed the aquifer’s sustainable yield of 38 million gallons a day.
To this, the commission staff’s report noted that the estimated recharge for the area is 152 mgd. So even if pumping reaches the sustainable yield, 114 mgd would still flow to the ocean and provide a buffer against any climate changes, it stated. It also stated that only 12 to 14 mgd are pumped from all 105 wells that tap the aquifer and that county population projections suggest that by 2025, pumping would reach 20 mgd, roughly half of the sustainable yield.
However, commission staff also pointed out that full build-out under current county zoning would require 38 mgd, or 100 mgd if agricultural uses are included. Full build-out of the county General Plan would require 175 mgd.
One of the aquifer’s wells has experienced increased salinity and there are serious disagreements over the water resources, the report continued.
Given the current level of pumping, “we don’t feel like the sustainable yield is a problem in this area,” staffer Paul Eyre told the Water Commission. A recent well measurement by CWRM staff revealed that water levels are not dropping but do fluctuate with rainfall. An observation well within the park also suggests water salinity hasn’t changed much, he said. “If it has, the water has become a bit fresher,” he added.
With regard to future withdrawals, he said that pumpage of 175 mgd “equates to serving a population of about a million people. I don’t know how reasonable this projection is.” (The entire island of O`ahu has fewer than 1 million people.)
To this, commissioner Kamana Beamer interrupted, “I’m sorry, but it is in a county plan that came to your commission.”
Still, Eyre said, “if the National Park case is sufficient to designate the Keauhou aquifer, the same case … will apply to all aquifers along the ocean.”
Beamer then asked whether those aquifers were subject to plans that, like Keauhou, call for buildout that exceeds the sustainable yield.
On this point, commission geologist Roy Hardy answered, “We do know if you were to look at zoning anywhere in the state and apply duties, we’re over-zoned” with regard to sustainable yields.
While his staff seemed to be arguing that the prevalence of over-zoning was reason not to designate, Water Commission director William Tam pointed out that the commission in 1992 designated a surface water management area in Windward O`ahu because proposed developments authorized by the county exceeded the sustainable yield.
The staff report called out four specific studies that will be critical to informing the commission’s decision: an evapotranspiration study by University of Hawai`i climatologist Thomas Giambellluca, a groundwater recharge update by the U.S. Geological Survey, a USGS isotope study that will analyze the relationship (if any) between high-level groundwater and basal groundwater in the Keauhou area, and a 3-D groundwater model of the aquifer that incorporates those three studies as well as other research. The last study is expected to be completed some time after September 2014.
Given that, commission staff recommended delaying until December 2014 a decision on whether to proceed with designation.
Opposition
Before hearing any testimony from the public, commissioners Milton Pavao, Ted Yamamura, and William Balfour were already pushing for the outright denial of the petition.
“Can we deny without prejudice and just have them come back when they’re ready?” Yamamura asked.
The commission had received several written testimonies against the petition. They included letters from the Hawai`i Island Economic Development Board and the Hawai`i Leeward Planning Conference (both of those were signed by Jacqui Hoover), the Land Use Research Foundation, the Hawai`i Department of Water Supply, and SCD-TSA Kaloko Makai, LLC, which plans to develop more than 1,100 acres of lands above the park.
The most vehement opposition came from Kaloko Makai’s Stanford Carr. In his letter, he called the NPS an agency “that seems to be operating under its own agenda of dictating land uses, and picking and choosing who qualifies as an acceptable land user in Kona, notwithstanding the decision of the people of the County of Hawai`i to intentionally focus urban development within the Kona Urban Area designated under the Kona Community Development Plan …
“More compelling than anything I could say, the data gaps in the NPS petition make it crystal clear that NPS‘ efforts are premature, unsupported by facts, inconsistent with the requirements of the Water Code, and should be rejected.”
Should the commission choose not to reject the petition, Carr continued, “please consider this SCD-TSA Kaloko Makai, LLC’s written request for a contested case hearing.”
Quirino Antoino, Jr., manager of the Hawai`i County DWS also recommended denial on behalf of his office, as well as the mayor’s.
“No on wants to damager the aquifer or harm traditional and customary practices,” said former Water Commission chair Peter Young, currently a consultant for Kaloko Makai. “Without water we don’t exist here.”
He mentioned that the Kona Water Roundtable, composed mainly of private consultants, has reviewed a lot of research over the years about the hydrology of the Keauhou aquifer system. And they’ve determined that high-level water at Keauhou is separated from the basal aquifer by impermeable rock and that the recharge to the aquifer is much greater than initially calculated, he said.
He urged the commission to deny the petition.
“It doesn’t mean you don’t do anything,” he added. He recommended that the commission wait to see what the USGS studies yield next year, and also look at other studies, including those on anchialine ponds. He then quoted a 2011 NPS inventory report that stated that none of the major ponds within the park have been studied in detail to characterize ecosystem status or hydrologic connectivity.
“They’re concerned about it, but they have not studied it yet. Why don’t we get that studied?” Young said.
Never-never Land?
To commissioner Balfour, any discussion of potential pumpage of the aquifer decades from now is “way, way premature.”
“I don’t think its necessary. You’re talking about … development 20 or 30 years out. Come on, that’s never-never land. We’ve got lots of fish to fry,” he said.
Commissioner Beamer, on the other hand, seemed to welcome the opportunity to do some long-term planning.
“To me, 35 years is not that far out,” he said. “The resource will still be there … I don’t mind thinking about it.”
He added that it was the Water Commission’s constitutional mandate to consider the issues presented by the petition.
“I would not want to not do that,” he said.
Tam expanded on Beamer’s argument. He argued that the commission did not have the evidence to make a decision on whether or not the petition has merit, including the outstanding studies, water claims by the Department of Hawaiian Home Lands, and traditional and customary claims, among other things.
“To make a decision without that would be arbitrary and capricious,” he said.
Even so, deputy attorney general Julie China said that the descriptions of the agenda item in the public notice and staff submittal were broad enough to allow the commission to deny the petition that day.
When Yamamura asked China whether such a vote would be arbitrary and capricious without the kind of evidence Tam suggested was necessary, China said only, “You have what was presented to you.”
Commissioner Jonathan Starr said he didn’t feel right about discussing the merits of the petition yet.
“Neither the petitioner has been able to present to us nor have other parties … such as the mayor, the county council, the Department of Planning,” he said.
Commissioner Pavao then asserted that anything short of denial would just be more work for commission staff.
To this, Tam pointed out, “We do this work. This is what we do. … We don’t make decisions based on our staff.”
Starr then made a motion to extend the review period to December 2014. He added that the extension shall not preclude the commission from gathering data, holding workshops or site visits, or “proceeding with decision making when the commission has received adequate input.” Beamer seconded the motion.
Before the vote, Starr asked the commission make sure its decisions are “based on the needs and arguments in the constitution and Water Code. Such things as ‘We’re short of staff,’ or a lot of political pressure are not the type of public trust [reasons] we can state for our decision.”
In the end, Starr, Beamer, commissioner Loretta Fuddy, and chair William Aila supported the motion.
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