STAND. COM. REP. NO.1280

Honolulu, Hawaii

, 2001

RE: S.B. No. 1163

 

 

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-First State Legislature

Regular Session of 2001

State of Hawaii

Sir:

Your Committee on Water and Land Use, to which was referred S.B. No. 1163 entitled:

"A BILL FOR AN ACT RELATING TO THE EFFECTIVE DATE OF EXISTING USES UNDER THE WATER CODE,"

begs leave to report as follows:

The purpose of this bill is to change the effective date of existing uses of water under the State Water Code (Water Code) from July 1, 1987, to the effective date of designation.

Your Committee received testimony in support of this measure from the Commission on Water Resource Management of the Department of Land and Natural Resources (Commission), City and County of Honolulu Board of Water Supply, County of Kauai Department of Water, Nature Conservancy of Hawaii, and Land Use Research Foundation of Hawaii. Hawaii's Thousand Friends and the Sierra Club provided testimony in opposition to the bill.

Your Committee finds that the Commission can designate ground water and surface water management areas for the purpose of establishing administrative control over the withdrawals of water. Thereafter, under the Water Code, existing water users must file for an existing water use permit. The Commission, in a 1994 declaratory ruling, determined that existing water uses would be fixed as of the date that the area is designated a water management area. The Commission consistently applied the date of designation as the critical date for existing water users in a newly designated water management area. However, the Hawaii Supreme Court in the Waiahole decision, 94 Hawaii 97 (2000), overruled the Commission's determination and held that only existing uses of water as of July 1, 1987, could be considered existing water uses under the Water Code.

Your Committee expressed the concern that using the date when an area is designated a water management area, as the trigger date for determining the appropriate level of water use, would create an incentive for users to increase water usage with no justifiable reasons. Thus, laying the documenting foundation to apply for a higher level of water use, with no justifiable reason for the higher use, so that the Commission would award that higher level of usage. In this regard, your Committee was informed that the Commission does not "rubber stamp" the water uses proffered by users, but generally allows something less.

Your Committee received testimony that using the July 1, 1987 date for existing uses would create several problems, including:

(1) The Commission does not have reliable information on water usage for 1987;

(2) The Commission is more able to accurately verify and assess water uses at the time of designation that results in resource decisions being based on better information;

(3) Using 1987 as the existing date seriously affects public and private municipal water systems because the existing municipal water use in 1987 is generally less than it is today. Adequate drinking water is critical; and

(4) Using 1987 as the existing use date gives priority to many uses that no longer exist.

Your Committee finds that the Commission controls critical water resources to ensure the reasonable and beneficial use of this resources for the public interest. Your Committee believes this duty is best fulfilled by changing the effective date for existing water uses in water management areas from July 1, 1987, to the effective date of designation of a water management area under the State Water Code.

As affirmed by the record of votes of the members of your Committee on Water and Land Use that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 1163 and recommends that it pass Second Reading and be placed on the calendar for Third Reading.

Respectfully submitted on behalf of the members of the Committee on Water and Land Use,

____________________________

EZRA KANOHO, Chair