Monsanto requested more water and was denied today by the State Water Commission.  Here is the Water Commission staff briefing memo:

SUMMARY OF REQUEST: The applicant. Monsanto Company (“Monsanto”), requests that the Commission approve a water use permit and allocate 2.636 million gallons per day (Mgd) of potable basal ground water from a new well in the Waipahu-Waiawa Ground Water Management Area. If approved, this new water use permit would provide back-up irrigation water for 2,052 net acres of seed corn and various other crops, currently irrigated by surface water from the Waiahole Ditch System.

BACKGROUND: Pursuant to the Waiahole Contested Case Hearing Decision and Orders, and the subsequent transfer of the land and Ground Water Use Permits (“GWUP”) from the Estate of James Campbell to Monsanto on November 13, 2007. Monsanto currently has a GWUP for 2.636 mgd of the surface water from the Waiahole Ditch System (GWUP No. 828).

The applicant is concerned that the Waiahole Ditch System (managed by the State Agribusiness Development Corporation) could be damaged and leave Monsanto without water for an extended period of time.

On May 4, 2012, Monsanto submitted applications for well construction/pump installation permits. Monsanto did not list a contractor. The application form was not complete. It did not submit a completed Ground Water Use Permit Application (GWUPA 954). To be consistent, well construction and pump installation permits are normally handled administratively and concurrently with the Commission’s decision on a GWUPA. However, the Commission may choose to address the well and pump permits independently in the situation presented here. Information regarding the source, use, and notification is provided in Attachment A.

ANALYSIS/ISSUES: The State Water Code, Haw. Rev. Stat. § 174C-49(a) establishes seven (7) criteria that must be met to obtain a water use permit.

(1) Water availability Through the Hawaii Water Plan, the Commission determined the sustainable yield for the Waipahu-Waiawa Aquifer System Area to be 104 million gallons per day (“mgd”)Individual existing water use permits in this aquifer system area are shown in Exhibit 2. A summary of the current ground water conditions in the aquifer is set forth in

Table 1: Table 1. Waipahu-Waiawa Aquifer System Area
Though not all users in the Waipahu-Waiawa Aquifer System are reporting monthly water
usage. the data indicates that total 12 month average (“may”) pumpage in the System was at
least 50 mgd in 2006 (see chart below)

Based on these figures, there is sufficient water available in the Waipahu-Waiawa Aquifer System to accommodate the full allocation request of 2.636 mgd.

(2) Reasonable-beneficial
Haw. Rev. Stat. §174C-3 defines “reasonable-beneficial use” as the use of water in such a quantity as is necessary for economic and efficient utilization, for a purpose, and in a manner which is both reasonable and consistent with the state and county land use plans and the public interest

I.Purpose of Use
The applicant requests the use of potable ground water as a backup source for irrigation of 2,052 (net) acres of seed corn and other crops. Raw. Rev. Stat. §174C-2(c) Declaration Policy states that the Water Code shall be liberally interpreted to obtain maximum beneficial use of the waters of the State for various purposes including agricultural uses.

II. Quantity Justification
In the Waiahole Contested Case Hearing, the Commission approved 2.636 mgd of Waiahole surface water for use on the fields proposed for use her (owned at the time by Campbell Estate).. That surface water use permit is not at issue here.

III. Efficiency of Use
The issue of efficiency of surface water for use on these lands was addressed in Waiahole and will not be re-evaluated here.

IV. Analysis of Practical Alternatives
In the Waiahole Contested Case Hearing, the Commission determined that the highest and best use of water from Waipahu-Waiawa Aquifer System Area is to meet potable needs. This proposed use would be a back up to the Waiahole Ditch System. It is not the Commission’s preferred source. but it is an alternative. Monsanto analyzed alternatives to potable ground water as back up sources. Monsanto concluded that municipal sources, wastewater reuse, desalinization, and other surface water are not available.

(3) Interference with other existing legal uses
There are no other production wells within a mile of the proposed source. State Well No. 2503-04 is located approximately two-thirds of a mile northwest of the proposed well. It is a monitoring well.

There are contaminated Del Monte wells north of the subject well. These are subject of an EPA Consent Decree to clean up the wells. The State of Hawaii Department of Health Hazard Evaluation and Emergency Response Office (HEER) and EPA, indicated they have no concerns about Monsanto’s application. The proposed well is outside of the area that is subject to the Consent Decree. There appear to be no negative impacts on the EPA / DOH mitigation work to remediate the contaminated plume. The proposed well will not be used for potable purposes.

Pump tests will be required for the proposed 2,083 gpm pump. Results of this pump test will be used to evaluate adverse impacts.

Well Completion Reports (required under the administratively issued Pump Installation Permit) for this well will not be approved unless the pump tests show no or minimal adverse impacts to the aquifer.

The staff anticipates no adverse impacts due to pumping. However, this judgment depends on acceptable pump tests that show no adverse impacts for the proposed pump capacity.

(4)
Public interest
The Water Code, flaw. Rev. Stat. §174C-2,
as follows::

–
Declaration of Policy defmes “public interest”
(c) The state waler code shall be liberally interpreted to obtain tnari.’num beneficial use of
the waters of the State for purposes such as domestic uses, aquaculture uses, irrigation
and other agricultural uses, power development, and commercial and industrial uses.
However, adequate provision shall be made for the protection of traditional and cuslomaly Hawaiian rights, the protection and procreation of fish and wildlife, the
maintenance of proper ecological balance and scenic beauty, and the preservation and
enhancement of waters of the State for municipal uses, public recreation, public water
supply, agriculture, and navigation. Such objectives are declared to be in the public
interest.

The Board of Water Supply (“BWS”) is concerned that duplicate water uses permit for 2.636
mgd as a backup source (even if not pumped) will reduce the available allocation for other
future uses. If a well construction permit and pump installation permit for back-up sources
does not affect the long-term availability of potable ground water, for other users, then third
parties will not be impacted. There have been no other objections to the well construction
permit and the pump installation permit.

(5)
State and County general plans and land use designations
The proposed uses are in the State Agricultural District. The County zoning is Agriculture.
The proposed use is consistent with these land use designations.
Monsanto’s applications were reviewed by:

1) State Department of Land and Natural Resources (DLNR) and its divisions State Parks,
Aquatic Resources, Historic Preservation, and Land; the Department of Health (DOH)
Clean Water. Safe Drinking Water. and Wastewater Branch. The Department of
Hawaiian Home Lands (DDHL) and Land Use Commission (LUC); and the Office of
Hawaiian Affairs (OHA).

2) City and County of Honolulu Office of the Mayor, Department of Planning and
Permitting, and the Board of Water Supply.

The Board of Water Supply is concerned about the issuance of water use permits as back up
allocations for landowners who already have water use permits.

(6)
County land use plans and policies
The Office of the Mayor, Department of Planning and Permitting, and the Honolulu Board
of Water Supply reviewed Monsanto’s applications.

(7)
Interference with Hawaiian home lands rights
All permits are subject to the prior rights of Department of Hawaiian Home Lands
(“DHHL”). DHHL and the Office of Hawaiian Affairs (“OHA”) reviewed Monsanto’s
applications. DHHL responded that its needs may exceed DHHL’s current 1.358
reservation.

Standard water use permit conditions 3(a). 6 and 9(1) inform all water use permittees that
their permits are subject to and may not interfere with DHHL water rights.

Unless DHHL’s reservation is increased, the 1 .358 mgd reservation addresses DHHL’s
immediate needs. If the full 2.636 mgd is approved, 16.508 mgd will still be available under
the current calculations
although this may change after the central Oahu recharge and
evapo-transpiration studies are completed in 2014.

DHHL’s requests may be considered
under a separate action. Monsanto’s applications do not appear to interfere with DHHL
rights at the present time.

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Other issues
L Chapter 343
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Environmental Assessment (EA) Compliance
Environmental Assessment (EA).
In accordance with Haw. Rev. Stat. §343-5(a). the proposed action does not trigger the need
for an EA.

II Allocations for Backup Needs
In the past, the Commission has allowed modifications to or backup sources for existing wells
with water use permits where the wells are part of a battery of wells from an existing source
OR are part of an allocation within the same aquifer system area —provided there is no net
increase to the allocation See Declaratory Judgment DEC-ADM97-A1 (Exhibit 3). The
Honolulu BWS and Maui Department of Water Supply have used backup sources to optimize
pumpage within their overall municipal systems.

Municipalities are perhaps unique in this regard due to their integrated and nearly island wide
public obligations.

However, this practice and Declaratory Ruling does not apply to
Monsanto’s situation here. Monsanto proposes a completely new source in a different
aquifer system area that is not part of a battery of wells.

Allocations for the same use from two separate aquifer system areas raise a double counting
problem. If two separate allocations are approved (from the same or different sources), other
landowners would soon be precluded from applying for ground water in that area. The water
available for allocation would be reduced. The Honolulu BWS is seriously concerned about
double counting. The CWRM staff agrees with the BWS. Double counting is fundamentally
unsustainable and unfair to others.

IlL Well Construction & Pump Installation in Ground Water Management Areas (GWM4s)
In the past, the Commission allowed wells to be constructed in a ground water management
area before a water use permit is issued. See Declaratory Rulings DEC-ADM92-G0 & DEC
ADM94-G2 (Exhibits 4 & 5).

However. pump installation permits have not and are not allowed prior to the approval of a
water use permit.

This approach is used to address the “reliance” issue. The reliance issue arises from the risk
assumed by an applicant when constructing a well in “reliance” upon a water use permit and
allocation later.

In a Ground Water Management Area (“GWMA”). applicants have been
allowed the option of drilling a well with the express understanding that they may not obtain a
permit (and allocation) later. The purpose of this practice has been to provide the
Commission with additional and better information to evaluate later water use permit
decisions. If pump tests show no adverse impacts to existing sources, then a pump
installation permit could then be administratively approved in non-designated areas.

The current status of the Waipahu-Waiawa Aquifer System Area and knowledge of the
ground water supply suggests that a new well pumping 2.636 mgd would not have an
immediate impact on the source. In an emergency, pumping at that rate should not harm
third parties

However. it would change the current Commission ruling and practice
regarding pump installation prior to approved GWUP,

DISCUSSION:
The staff looked at 3 options:
Deny the Ground Water Use Permit Application (GWUPA). Grant the Well Construction &
jp Installation Permits. Apply the Water Code’s_Shoflgç Plan Provisions to address
emergencies.

The Applicant seeks assurance that if the Waiahole Ditch ceased to provide surface
water, some reasonable alternative is available.. It is not clear now what an emergency
might entail or where. The hill extent of an emergency is only knowable when it occurs.
The Commission would need to address the duration of an emergency and alternative
water sources after the scope of the problem is known.

The Water Code. Haw. Rev. Stat. §174C-62(g) provides:
If an emergency condition arises due to a water shortage within any area, whether within
or outside of a water management area, and f the commission finds that the restrictions
imposed under subsection (c) are not sufficient to protect the public health, safety, or
welfare, or the health of animals, fish, or aquatic life, or a public water supply, or
recreational, municipal, agricultural, or other reasonable uses, the commission may issue
orders reciting the existence of such an emergency and requiring that such actions as the
commission deems necessary to meet the emergency be taken, including but not limited to
apportioning, rotating, limiting, or prohibiting the use of the water resources of the area.
Any party to whom an emergency order is directed may challenge such an order but shall
immediately comply with the order, pending disposition of the party’s challenge. The
commission shall give precedence to a hearing on such challenge over all other pending
matters.

This provision gives the Commission the flexibility to address the problems that may
arise. This section allows the Commission to fashion remedies appropriate to the
situation. Until the nature of the problem is known, it is not possible to design a solution.
An automatic right to pump well water might or might not be the answer. For example,
there could be multiple parties affected by a disrupted by the breakdown of a surface
water system. The solution may need to accommodate many users, not just one.

To avoid the double counting problems and in recognition that other parties would soon
apply for similar back up wells, the Commission could a) deny this GWUPA, b) allow
construction of the well and installation of the pump to provide an actual emergency relief
alternative, and c) use the shortage plan provisions of the Water Code to address whatever
emergency actually arises.

This approach avoids double counting, does not require an allocation from Waipahu
Waiawa that precludes others from applying for allocations for more immediate needs,
and remains flexible to other solutions..

2.
Issue a Ground Water Use Permit for 0.000 mgd
The Commission could allocate 0.000 mgd. This would allow the Commission to
administratively issue a well construction and pump installation permit consistent with
prior Commission rulings.

There could be a special condition to allow immediate relief pumpage in the event of an
emergency under Haw. Rev. Stat. §174C-62(g). A special condition could also require
the applicant to submit a future GWUPA within a prescribed amount of time from the
date of the actual emergency.

However, the concept of a “0” allocation water use permit defeats the entire purpose of a
permit in a designated ground water management area. Moreover, the nature of the
emergency and new water use permit application would displace the old “0” permit and
render it useless. This is not a helpful approach.

3.
Issue a water use permit for 2.636 Mg
If the full 2.636 mgd is allocated, the GWUP would have to provide that: 1) the permit
will be fully or partially revoked (with the applicant agreeing to waive the right to a
hearing) if the allocations in Waipahu-Waiawa are fully allocated to the sustainable yield
(i.e. this would be automatic revocation); 2) that the applicant notify the Commission
immediately upon turning on the pump for consumptive use; 3) that at no time shall the
applicant ever exceed a combined total of 2.636 mgd from both the Waiahole Ditch
System and the well; 4) should an alternate source become available that this allocation
may be fully or partially revoked without a hearing: and 5) if pumping of this well has
adverse impacts on the Kunia well, this permit may be revoked without a hearing.

This creates the “double counting” problem and invites other applicants’ in water
management areas to do the same thing. There is no principled stopping point to the
logic. 11 would immediately lead to analytical grid lock and generate legal issues among
all users in the area. It will make planning and future management untenable.

RECOMMENDATION:
Providing a water user with two allocation of water in the same land use is inherently unfair to all
users, an invitation to a flood of similar requests throughout the state, an unsupportable approach to
scarce natural water resources, and against public policy.

The staff strongly recommends that the Commission adopt option No.:
1. Deny the GWUP application.
2. Approve the Well Construction Permit.
3. Approve the Pump Installation Permit and pump testing.