The 2016 session of the Hawaii Legislature will not go down as one notable for its environmental achievements. On the whole, few bills having a significant impact on the environment made it through to the finish line.

Still, several measures that did become law could make environmental protection more difficult or divert resources from agencies charged with protecting natural resources that are already strapped for funds.

House Bill 2040 (Act 172) establishes a Water Security Advisory Group – ostensibly to advise the Department of Land and Natural Resources – with a sunset provision after two years. The purpose, the bill says, is to “enable public-private partnerships that increase water security by providing matching state funds for projects and programs that: (1) Increase the recharge of groundwater resources; (2) Encourage the reuse of water and reduce the use of potable water for landscaping irrigation; and (3) Improve the efficiency of potable and agricultural water use.”

To that end, the measure appropriates $750,000 for the current fiscal year to the Department of Land and Natural Resources.

The legislation is the result of an initiative that began three years ago under the auspices of the Hawaii Community Foundation. In order to “develop a forward thinking and consensus-based strategy to increase water security for the Hawaiian Islands,” it stated, it assembled large landowners, agency representatives, selected organizations (the Hawaii Farm Bureau, the Hawaii Cattlemen’s Council, for example), individuals (such as Patrick Kobayashi of the Kobayashi Group and Dennis Teranishi, head of the Pacific International Center for High Technology Research), and academics.

Although most of their work was conducted out of view of the public, last fall, HCF briefed the state Commission on Water Resource Management on the results of the group’s work. One of the chief recommendations was for the state to establish a “water security and innovation fund” with an initial appropriation of $5 million, “to be matched by a minimum of $1 million in non-state funds.”

The ultimate goal is the development – through re-use, efficiency measures, and increased groundwater recharge – of an additional 100 million gallons a day of available potable water across the islands.

The bill breezed through two House and two Senate committees. Not a single piece of written testimony was submitted in opposition. The various standing committee reports were uniformly uncritical.

Suzanne Case, chair of the state Board of Land and Natural Resources, testified in support of the measure, “provided that this appropriation does not adversely impact appropriations or other priorities” in the governor’s budget request or any existing funds. Case also wanted the legislators to include sufficient funds for staff oversight. (Case, it probably should be noted, was one of the members of the HCF group that worked on the water security initiative.)

The measure specifies who is to be included in the 13-member advisory group. There are to be two representatives from each of the county water boards (the manager and chief engineer); the director of the Commission on Water Resource Management; and four additional members selected by the chair of the Board of Land and Natural Resources (one with “knowledge of agricultural water storage and delivery systems;” one “from a private landowning entity that actively partners with a watershed partnership;” one “with knowledge, experience, and expertise in the area of Hawaiian cultural practices;” and one “representing a conservation organization”).

None is subject to confirmation by the Senate. Five members constitute a quorum, according to the act.

Although the group is to be advisory, it is not at all clear from the language in the bill just who within the DLNR is to receive and act upon the group’s advice. There is no mention of any role of the Land Board or Water Commission, except for the Land Board chair’s role in appointing council members and the inclusion of the Water Commission’s director as an ex officio member. Nor is any division within the DLNR tasked with holding the purse strings.

As to whether the deliberations of the advisory group are subject to the state’s open-meetings law or open-records law (Chapters 91 and 92 of Hawaii Revised Statutes), Act 172 is silent on that point. When the question was posed to him, Jeffrey Pearson, deputy DLNR director for the Water Commission, said he would “refer to our deputy attorney general on this,” adding that in his opinion, “if there is a discussion on spending state funds it will be subject to (the) Sunshine Law.”

However, section 4 of the measure seems to give the new advisory group a way for it to deliberate out of the public’s view.  The DLNR, it states, “may contract with an independent nonprofit entity to carry out the duties and activities associated with this Act.”

Pearson indicated that this would likely occur, although nothing had been done by press time. Regarding selection of the members, Pearson stated that the chosen nonprofit “would also work with the DLNR board chair in forming the group members.”

Finally, Pearson was asked what entity within the DLNR would receive the advice of the advisory group. Pearson replied that the group itself would probably have the power to expend the appropriated funds.

“I am under the impression that the group will make the decision on the use of the funds,” he wrote in an email to Environment Hawaii – although, he added, “I will consult with our AG on that question.”

Reclaimed Water

The issue of water security was the subject of another measure passed by the Legislature and signed into law. House Bill 1749 (Act 170) amends the state Water Code (Chapter 174, HRS) by adding a sixth objective to be included in the state Water Plan: “The utilization of reclaimed water for uses other than drinking and for potable water needs in one hundred percent of state and county facilities by December 31, 2045.”

Both Suzanne Case of the DLNR and Scott Enright, chair of the Board of Agriculture, testified that the goal may not be achievable. Case pointed out that most state-owned facilities “are not proximal to a wastewater reclamation facility” or recycled water distribution system.

To achieve the stated objective, she continued, “either reclaimed water would have to be trucked in to each facility on a regular basis or separate dual water systems or many new wastewater reclamation facilities would have to be constructed throughout the state, which would be extremely costly.”

Case also pointed out that the state Department of Health had released updated Reuse Guidelines in January of this year. The guidelines “identify areas within the state where recycled water application is conditional and restricted.”

“It is very likely that state facilities are located in Conditional and Restricted Areas,” Case said.

Enright requested clarification from the legislators. “If the intent is a proposal to treat and reuse on-site all potable water used, then we believe that is a laudable goal, which unfortunately may be extremely difficult to achieve,” involving the treatment of water on-site to “an acceptable Department of Health standard.”

While “regionalized” wastewater treatment technology may be available, Enright noted, “we are unaware of how scalable these localized treatment plants are.”

The Senate, recognizing the concerns raised, amended the bill so the new objective would be to simply increase the use of reclaimed water at state facilities, “where feasible.” The conference committee, however, reverted the bill back to its original form, which called for 100 percent reclaimed water utilization.

(For more on the Fresh Water Initiative, see the October 2015 edition of Environment Hawaii, “Hawaii Community Foundation’s Council Unveils Blueprint for Freshwater Security, available at environment-hawaii.org.”)

Reprinted with permission from the current issue of Environment Hawaii, a nonprofit news publication founded in 1990. All issues published in the last five years are available free to Environment Hawaii subscribers at www.environment-hawaii.org. Non-subscribers must pay $10 for a two-day pass. All issues older than that are free to the public.