Surface Water in Waihee, Waiehu, Iao, and Waikapu Streams on Maui Designated as State Surface Water Management Areas

Background

According to the March 2008 edition of the Water Resource Bulletin, on December 6, 2006, Earthjustice, representing Hui o Na Wai Eha and Maui Tomorrow Foundation, Inc. filed a Petition for the Designation of Water Management Area. In its Petition, it requested that the Commission on Water Resource Management (“Commission”) either: (1) recognize the watersheds of Waihee, Waiehu, Iao, and Waikapu Streams (collectively, Na Wai Eha) as part of the existing Iao Ground Water Management Area, or (2) designate the Na Wai Eha Surface-Water Hydrologic Units as a surface water management area.

On February 21, 2007, the Commission approved the chairperson’s recommendation to continue the designation process, which included publicizing and holding a public hearing, initiating and completing investigations, completing findings of fact, further consultation with the Mayor, County Council, and the Department of Water Supply, and final Commission action.

On April 26, 2007, notice was published and a public hearing was held in Wailuku, Maui, to hear public testimonies regarding the proposed designation. A draft Findings of Fact was completed and there was further consultation with the County.

On March 13, 2008, the Commission took action and approved the Final Findings of Fact and Chairperson’s recommendation to designate the Waihee, Waiehu, Iao, and Waikapu Surface Water Hydrologic Units as water management areas. According to the Maui News, the Commission has never designated a surface water management area previously.

Commission Regulations

The State Commission on Water Resource Management is charged with regulating and “designat[ing] areas for the purpose of establishing administrative control over the withdrawals and diversions of ground and surface water in threatened areas to ensure the most beneficial use, development, or management of the water resources in the interest of the people of the state.” HAR § 13-171-1.

“Surface water” is broadly defined under the Commission’s rules and includes “both contained surface water . . . and diffused surface water.” In addition, “[w]ater from natural springs is surface water when it exits from the spring onto the earth's surface.” HAR §13-171-2.

Before the Commission can designate an area for surface water use regulation, the Commission must consider three criteria: surface water supply for future needs, the capacity of the stream to assimilate pollutants, and “serious disputes” respecting the use of surface water resources. HRS §13-171-8.

Discussion

Now that the Commission has designated these various surface waters on Maui as water management areas, any withdrawal, diversion, impoundment, or consumptive use of those waters are subject to the Commission’s rules under HAR Chapter 13-171.

The Commission will allocate a certain amount of water to the County, and the county board of water supply will have the authority to allocate the use of those waters for municipal purposes. Otherwise, one must first obtain a water use permit from the Commission prior to using the water.

An application for a water permit is a discretionary permit, which requires public hearings before the Commission. During the application process, the public may file an objection and appear as a party in the proceedings. Commission proceedures include contested case hearings under HRS Chapter 91.

Under the Commission’s rules, the applicant must establish that the proposed use of water meets the following six criteria: (1) the use can be accommodated with the available water source; (2) the use is a reasonable-beneficial use (i.e., a quantity as is necessary for economic and efficient utilization, for a purpose, and in a manner which is not wasteful and is both reasonable and consistent with the state and county land use plans and the public interest); (3) the use will not interfere with any existing legal use of water; (4) the use is consistent with the public interest; (5) the use is consistent with state and county general plans and land use designations; and (6) the use is consistent with county land use plans and policies. HAR §13-171-13.

Existing users have one year form the designation of the water management area to keep its right to an existing use. However, the Commission may allow an existing use application for up to five years from the designation. Existing users must show that the existing use is (i) a reasonable-beneficial use and (ii) is allowable under the common law of the State. The Commission will hold a hearing before making its determination.

In addition to the authority to grant permits, the Commission may also make water shortage declarations and reserve water to itself for seasonal fluctuations.