Regulation of Water Use

HRS div. 1, tit. 12, ch. 174C, pt. IV

in effect

HRS §174C-41 Designation of water management area

174C-41. Designation of water management area (a) When it can be reasonably determined, after conducting scientific investigations and research, that the water resources in an area may be threatened by existing or proposed withdrawals or diversions of water, the commission shall designate the area for the purpose of establishing administrative control over the withdrawals and diversions of ground and surface waters in the area to ensure reasonable-beneficial use of the water resources in the public interest. (b) The designation of a water management area by the commission may be initiated upon recommendation by the chairperson or by written petition. It shall be the duty of the chairperson to make recommendations when it is desirable or necessary to designate an area and there is factual data for a decision by the commission. The chairperson, after consultation with the appropriate county council, county mayor, and county water board, shall act upon the petition by making a recommendation for or against the proposed designation to the commission within sixty days after receipt of the petition or such additional time as may be reasonably necessary to determine that there is factual data to warrant the proposed designation. (c) Designated ground water areas established under chapter 177, the Ground-Water Use Act, and remaining in effect on July 1, 1987, shall continue as water management areas. [L 1987, c 45, pt of §2; am L 1999, c 197, §4]

HRS §174C-42 Notice; public hearing required

174C-42. Notice; public hearing required When a recommendation for designation of a water management area has been accepted, the commission shall hold a public hearing at a location in the vicinity of the area proposed for designation and give public notice of the hearing setting forth: (1) A description of the land area proposed to be designated in terms of appropriate legal subdivisions and tax map keys; (2) The purpose of the public hearing; and (3) The time, date, and place of the public hearing where written or oral testimony may be submitted and heard. The notice shall be given once each week for three successive weeks in the appropriate county and the last notice shall be not less than ten days nor more than thirty days before the date set for the hearing. The notice of public hearing shall be considered as sufficient notice to all landowners and water users who might be affected by the proposed designation. [L 1987, c 45, pt of §2; am L 1998, c 2, §43]

HRS §174C-43 Investigations required

174C-43. Investigations required Before any proposed water management area is designated by the commission, the chairperson may conduct, cooperate with the appropriate federal or county water agency in conducting, or administer contracts for the conduct of, any scientific investigation or study deemed necessary for the commission to make a decision to designate a water management area. In connection with such investigation or study, the chairperson from time to time may require reports from water users as to the amount of water being withdrawn and as to the manner and extent of the beneficial use. Such reports shall be made on forms furnished by the commission. [L 1987, c 45, pt of §2; am L 1999, c 197, §5]

HRS §174C-44 Ground water criteria for designation

174C-44. Ground water criteria for designation In designating an area for water use regulation, the commission shall consider the following: (1) Whether an increase in water use or authorized planned use may cause the maximum rate of withdrawal from the ground water source to reach ninety per cent of the sustainable yield of the proposed ground water management area; (2) There is an actual or threatened water quality degradation as determined by the department of health; (3) Whether regulation is necessary to preserve the diminishing ground water supply for future needs, as evidenced by excessively declining ground water levels; (4) Whether the rates, times, spatial patterns, or depths of existing withdrawals of ground water are endangering the stability or optimum development of the ground water body due to upconing or encroachment of salt water; (5) Whether the chloride contents of existing wells are increasing to levels which materially reduce the value of their existing uses; (6) Whether excessive preventable waste of ground water is occurring; (7) Serious disputes respecting the use of ground water resources are occurring; or (8) Whether water development projects that have received any federal, state, or county approval may result, in the opinion of the commission, in one of the above conditions. Notwithstanding an imminent designation of a ground water management area conditioned on a rise in the rate of ground water withdrawal to a level of ninety per cent of the area's sustainable yield, the commission, when such level reaches the eighty per cent level of the sustainable yield, may invite the participation of water users in the affected area to an informational hearing for the purposes of assessing the ground water situation and devising mitigative measures. [L 1987, c 45, pt of §2; am L 1999, c 197, §6]

HRS §174C-45 Surface water criteria for designation

174C-45. Surface water criteria for designation In designating an area for water use regulation, the commission shall consider the following: (1) Whether regulation is necessary to preserve the diminishing surface water supply for future needs, as evidenced by excessively declining surface water levels, not related to rainfall variations, or increasing or proposed diversions of surface waters to levels which may detrimentally affect existing instream uses or prior existing off stream uses; (2) Whether the diversions of stream waters are reducing the capacity of the stream to assimilate pollutants to an extent which adversely affects public health or existing instream uses; or (3) Serious disputes respecting the use of surface water resources are occurring. [L 1987, c 45, pt of §2]

HRS §174C-46 Findings of fact; decision of commission

174C-46. Findings of fact; decision of commission After public hearing and any investigations deemed necessary have been completed, the chairperson, after consultation with the appropriate county council, county mayor, and county water board, shall make a recommendation to the commission for decision. The commission shall render its decision within ninety days after the chairperson's recommendation to the commission. If the commission decides to designate a water management area, it shall cause a public notice of its decision to be given in the appropriate county and when so given, its decision shall be final unless judicially appealed. [L 1987, c 45, pt of §2; am L 1998, c 2, §44 and c 101, §3; am L 1999, c 197, §7]

HRS §174C-48 Permits required

174C-48. Permits required (a) No person shall make any withdrawal, diversion, impoundment, or consumptive use of water in any designated water management area without first obtaining a permit from the commission. However, no permit shall be required for domestic consumption of water by individual users, and no permit shall be required for the use of a catchment system to gather water. An existing use in newly designated areas may be continued until such time as the commission has acted upon the application subject to compliance with section 174C-51. (b) In its regulation of water resources in designated water management areas, the commission shall delegate to the county boards of water supply the authority to allocate the use of water for municipal purposes, subject to the limits of water supply allocated to the county boards of water supply in their role as water purveyors. [L 1987, c 45, pt of §2]

HRS §174C-49 Conditions for a permit

174C-49. Conditions for a permit (a) To obtain a permit pursuant to this part, the applicant shall establish that the proposed use of water: (1) Can be accommodated with the available water source; (2) Is a reasonable-beneficial use as defined in section 174C-3; (3) Will not interfere with any existing legal use of water; (4) Is consistent with the public interest; (5) Is consistent with state and county general plans and land use designations; (6) Is consistent with county land use plans and policies; and (7) Will not interfere with the rights of the department of Hawaiian home lands as provided in section 221 of the Hawaiian Homes Commission Act. (b) Within sixty days after receipt of a notice of a permit application, the county shall inform the commission if the proposed use is inconsistent with county land use plans and policies. (c) The common law of the State to the contrary notwithstanding, the commission shall allow the holder of a use permit to transport and use surface or ground water beyond overlying land or outside the watershed from which it is taken if the commission determines that such transport and use are consistent with the public interest and the general plans and land use policies of the State and counties. (d) The commission, by rule, may reserve water in such locations and quantities and for such seasons of the year as in its judgment may be necessary. Such reservations shall be subject to periodic review and revision in the light of changed conditions; provided that all presently existing legal uses of water shall be protected. (e) All permits issued by the commission shall be subject to the rights of the department of Hawaiian home lands as provided in section 221 of the Hawaiian Homes Commission Act, whether or not the condition is explicitly stated in the permit. [L 1987, c 45, pt of §2; am L 1991, c 325, §7]

HRS §174C-50 Existing uses

174C-50. Existing uses (a) All existing uses of water in a designated water management area, except those exempted from regulation by this chapter, may be continued after the effective date of designation only with a permit issued in accordance with sections 174C-51, 174C-52, and 174C-53(b). (b) After publication as provided in section 174C-52, the commission shall issue a permit for the continuation of a use in existence on the effective date of designation, if the criteria in subsection (a) are met and the existing use is reasonable and beneficial. Whether the existing use is a reasonable-beneficial use and is allowable under the common law of the State shall be determined by the commission after a hearing; provided that the commission may make such a determination without a hearing, if the quantity of water applied for does not exceed an amount per month established by rule or if the quantity of water applied for exceeds an amount per month established by rule, but no objection to the application is filed by any person having standing to file an objection. In determining whether an application does not exceed the amount per month established by rule, the commission shall consider an average of water use over the three-month period immediately preceding the filing of the application. (c) An application for a permit to continue an existing use must be made within a period of one year from the effective date of designation. Except for appurtenant rights, failure to apply within this period creates a presumption of abandonment of the use, and the user, if the user desires to revive the use, must apply for a permit under section 174C-51. If the commission determines that there is just cause for the failure to file, it may allow a late filing. However, the commission may not allow a late filing more than five years after the effective date of rules implementing this chapter. The commission shall send two notices, one of which shall be by registered mail, to existing users to file for an application for a permit to continue an existing use. (d) An application shall be acted upon by the commission within ninety calendar days of an application not requiring a hearing, or within one hundred eighty calendar days of an application requiring a hearing. The time periods prescribed in this subsection shall not be deemed to run for any period in which an application is not complete in all material respects in the judgment of the commission. (e) The commission shall issue an interim permit; provided that the existing use meets the conditions of subsection (b). The commission shall also issue an interim permit for an estimated, initial allocation of water if the quantity of water consumed under the existing use is not immediately verifiable, but the existing use otherwise meets the conditions of subsection (b) for a permit or an interim permit. An interim permit is valid for such time period specified therein. The commission may issue successive interim permits of limited duration. Interim permits are subject to revocation under section 174C-58. Whenever interim permits are to be issued, the time periods specified in subsection (d) apply to the issuance or nonissuance of interim permits. (f) A permit to continue an existing use shall be for a quantity of water not exceeding that quantity being consumed under the existing use. The quantity being consumed shall be determined and verified by the best available means not unduly burdensome on the applicant, as determined by the commission. The commission may prescribe the installation of metering or gauging devices, and, if so prescribed, such metering or gauging devices shall be in place and operational for at least one year before a determination is made as to the quantity of water being consumed in an existing use and a final permit is issued. (g) If an interim permit is issued pending verification of the actual quantity of water being consumed under the existing use, a final determination of that quantity shall be made within five years of the filing of the application to continue the existing use. In the final determination, the commission may increase or reduce the amount initially granted the permittee. (h) Two or more existing uses of water are deemed to be competing when they draw water from the same hydrologically controllable area and the aggregate quantity of water consumed by the users exceeds the appropriate sustainable yield or instream flow standards established pursuant to law for the area. If applications are made to continue existing uses which are competing and the uses otherwise meet the requirements of subsection (b), the commission shall hold a hearing to determine the quantity of water that may be consumed and the conditions to be imposed on each existing use. (i) A permit user of water with a continuous reduced water usage shall be given priority to reobtain its permitted level of water usage over any other application; provided that the use remains the same and is reasonable and beneficial and water is available. [L 1987, c 45, pt of §2; am L 1999, c 197, §8; am L 2001, c 10, §1]

HRS §174C-51 Application for a permit

174C-51. Application for a permit All permit applications filed under this part shall contain the following: (1) The name and address of the applicant and landowner; provided that: (A) In the event the applicant is an association, organization, partnership, trust, corporation, or any other legal entity doing business in Hawaii, the address of its principal place of business shall be stated in the application; and (B) In the event a lessee, licensee, developer, or any other person with a terminable interest or estate in the land, which is the water source of the permitted water, applies for a water permit, the landowner shall also be stated as a joint applicant for the water permit; (2) The date of application; (3) The water source of the water supply; (4) The quantity of water requested; (5) The use of the water and any limitations thereon; (6) The location of the use of water; (7) The location of the well or point of diversion; and (8) Such other relevant information that the commission may request from time to time. The commission in its discretion may allow a person to apply for several related withdrawals in the same application for a water permit. [L 1987, c 45, pt of §2]

HRS §174C-51.5 Dual line water supply systems; installation in new industrial and commercial developments located in designated water management areas

174C-51.5. Dual line water supply systems; installation in new industrial and commercial developments located in designated water management areas (a) The commission, as a condition for issuing permits pursuant to this part, may require the use of dual line water supply systems in new industrial and commercial developments located in designated water management areas. The commission shall not require the use of dual line water supply systems if: (1) There is a threat to existing water quality or to public health and safety, as determined by the department of health; (2) A source of nonpotable water will not be reasonably available in the near future as determined by the commission; or (3) There is a serious threat to permitted ground or surface water uses within a designated water management area as determined by the commission. (b) The county boards of water supply, in consultation with the department of health, shall adopt standards for nonpotable water distributed through dual line water supply systems, and rules regarding the use of nonpotable water. The standards and rules shall be adopted in accordance with chapter 91 and shall protect existing water quality and the health and safety of the public. (c) For the purposes of this section, the term: "Developments" means one or more commercial or industrial subdivisions approved after May 30, 2000. It shall not apply to any modification, addition to, or replacement of, any commercial or industrial subdivision in existence prior to May 30, 2000. "Dual line water supply system" means a supply system that distributes potable and nonpotable water through parallel but separate distribution lines. [L 2000, c 144, §2]

HRS §174C-52 Notice

174C-52. Notice (a) Upon receipt of the application, the commission shall cause a notice thereof to be published in a newspaper having general circulation within the affected area. The notice shall be published at least once a week for two consecutive weeks. In addition, the commission shall cause a copy of such notice to be sent to any person who has filed a written request for notification of any pending applications affecting a particular designated area and to the mayor and the water board of the affected county. This notification shall be sent by regular mail before the date of last publication. The commission shall also make available to the public, upon request, a monthly bulletin of all pending applications. (b) The notice and the monthly bulletin shall contain the name and address of the applicant; the date of filing; the date set for a hearing, if any; the source of the water supply; the quantity of water applied for; the use to be made of the water and any limitations thereon; the place of the use; and the location of the well point or diversion. (c) The notice shall state that written objections to the proposed permit may be filed with the commission by a specified date. The commission shall establish by rules the time limits within which objections must be filed. The commission, at its discretion, may request further information from either applicant or objectors, and a reasonable time shall be allowed for such responses. Each applicant shall be notified by the commission of the objections filed to an application. [L 1987, c 45, pt of §2]

HRS §174C-53 Permit issuance

174C-53. Permit issuance (a) The commission shall determine, after a hearing, if required, whether the conditions set forth in section 174C-49(a) have been established; provided that the commission may make such determination without a hearing if the quantity of water applied for does not exceed an average amount per month to be established by rule or if the quantity of water applied for exceeds an average amount per month to be established by rule, but no objection to the application is filed by any person having standing to file an objection. (b) In acting upon any application, the commission need consider only those objections filed by a person who has some property interest in any land within the hydrologic unit from which the water sought by the applicant is to be drawn or who will be directly and immediately affected by the water use proposed in the application. The commission shall adopt rules governing the filing of objections and the persons having standing to file objections. (c) An application shall be acted upon within ninety calendar days of an application not requiring a hearing, or within one hundred eighty calendar days of an application requiring a hearing. The time periods prescribed in this section shall not be deemed to run for any period in which an application is not complete in all material respects, in the judgment of the commission. (d) As a condition for the issuance of a permit the commission may require the permittee to install meters, gauges, or other appropriate measuring devices. [L 1987, c 45, pt of §2]

HRS §174C-54 Competing applications

174C-54. Competing applications If two or more applications which otherwise comply with section 174C-49 are pending for a quantity of water that is inadequate for both or all, or which for any other reason are in conflict, the commission shall first, seek to allocate water in such a manner as to accommodate both applications if possible; second, if mutual sharing is not possible, then the commission shall approve that application which best serves the public interest. [L 1987, c 45, pt of §2]

HRS §174C-56 Review of permits

174C-56. Review of permits At least once every twenty years, the commission shall conduct a comprehensive study of all permits issued under this chapter to determine whether the conditions on such permits are being complied with. The commission shall prepare a formal report to the legislature which shall be available to the public. [L 1987, c 45, pt of §2]

HRS §174C-57 Modification of permit terms

174C-57. Modification of permit terms (a) A permittee may seek modification of any term of a permit. A permittee who seeks to change the use of water subject to the permit, whether or not such change in use is of a material nature, or to change the place of use of the water or to use a greater quantity of water than allowed under the permit or to make any change in respect to the water which may have a material effect upon any person or upon the water resource, shall make application pursuant to section 174C-51 in respect to such a change. Modification of one aspect or condition of a permit may be conditioned on the permittee's acceptance of changes in other aspects of the permit. (b) All permit modification applications shall be treated as initial permit applications and be subject to sections 174C-51 to 174C-56; except that if the proposed modification involves an increase in the quantity of water not exceeding an average amount per month to be established by rule, the commission, at its discretion, may approve the proposed modification without a hearing provided that the permittee establishes that: (1) A change in conditions has resulted in the water allowed under the permit becoming inadequate for the permittee's needs; or (2) The proposed modification would result in a more efficient utilization of water than is possible under the existing permit. (c) County agencies are exempt from the requirements of this section except where the modification involves a change in the quantity of water to be used or where the new use would adversely affect the quality of the water or quantity of use of another permittee. [L 1987, c 45, pt of §2]

HRS §174C-58 Revocation of permits

174C-58. Revocation of permits After a hearing, the commission may suspend or revoke a permit for: (1) Any materially false statement in the application for the water permit, a modification of a permit term, or any materially false statement in any report or statement of fact required of the user pursuant to this part. (2) Any wilful violation of any condition of the permit. (3) Any violation of any provision of this chapter. (4) Partial or total nonuse, for reasons other than conservation, of the water allowed by the permit for a period of four continuous years or more. The commission may permanently revoke the permit as to the amount of water not in use unless the user can prove that the user's nonuse was due to extreme hardship caused by factors beyond the user's control. The commission and the permittee may enter into a written agreement that, for reasons satisfactory to the commission, any period of nonuse may not apply towards the four-year revocation period. Any period of nonuse which is caused by a declaration of water shortage pursuant to section 174C-62 shall not apply towards the four-year period of forfeiture. The commission may cancel a permit, permanently and in whole, with the written consent of the permittee. [L 1987, c 45, pt of §2]

HRS §174C-59 Transfer of permit

174C-59. Transfer of permit A permit may be transferred, in whole or in part, from the permittee to another, if: (1) The conditions of use of the permit, including, but not limited to, place, quantity, and purpose of the use, remain the same; and (2) The commission is informed of the transfer within ninety days. Failure to inform the commission of the transfer invalidates the transfer and constitutes a ground for revocation of the permit. A transfer which involves a change in any condition of the permit, including a change in use covered in section 174C-57, is also invalid and constitutes a ground for revocation. [L 1987, c 45, pt of §2; am L 1999, c 197, §9]

HRS §174C-60 Contested cases

174C-60. Contested cases Chapter 91 shall apply except where it conflicts with this chapter. In such a case, this chapter shall apply. Any other law to the contrary notwithstanding, including chapter 91, any contested case hearing under this section shall be appealed upon the record directly to the supreme court for final decision. Note The amendment made by L 2014, c 218, §8 is not included in this section. [L 1987, c 45, pt of §2]

HRS §174C-61 Fees

174C-61. Fees The commission shall promulgate a schedule of application and permit fees. The fees shall be used to defray the administrative costs of the permit systems established under this chapter. A public agency shall not be subject to the payment of any fees. L 1987, c 45, pt of §2

HRS §174C-62 Declaration of water shortage

174C-62. Declaration of water shortage (a) The commission shall formulate a plan for implementation during periods of water shortage. As a part of the plan, the commission shall adopt a reasonable system of permit classification according to source of water supply, method of extraction or diversion, use of water, or a combination thereof. (b) The commission, by rule, may declare that a water shortage exists within all or part of an area when insufficient water is available to meet the requirements of the permit system or when conditions are such as to require a temporary reduction in total water use within the area to protect water resources from serious harm. The commission shall publish a set of criteria for determining when a water shortage exists. (c) In accordance with the plan adopted under subsection (a), the commission may impose such restrictions on one or more classes of permits as may be necessary to protect the water resources of the area from serious harm and to restore them to their previous condition. (d) A declaration of water shortage and any measures adopted pursuant thereto may be rescinded by rule by the commission. (e) When a water shortage is declared, the commission shall cause a notice thereof to be published in a prominent place in a newspaper of general circulation throughout the area. The notice shall be published each day for the first week of the shortage and once a week thereafter until the declaration is rescinded. Publication of such notice shall serve as notice to all water users in the area of the condition of water shortage. (f) The commission shall cause each permittee in the area to be notified by regular mail of any change in the conditions of the permittee's permit, any suspension thereof, or of any other restriction on the use of water for the duration of the water shortage. (g) If an emergency condition arises due to a water shortage within any area, whether within or outside of a water management area, and if 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. [L 1987, c 45, pt of §2]

HRS §174C-63 Appurtenant rights

174C-63. Appurtenant rights Appurtenant rights are preserved. Nothing in this part shall be construed to deny the exercise of an appurtenant right, including access by the holder thereof to conduct activities necessary to assure the use, delivery, and quality of water including temperature and turbidity, that shall not be unreasonably withheld. A permit for water use based on an existing appurtenant right shall be issued upon application. The permit shall be subject to sections 174C-26 and 174C-27 and 174C-58 to 174C-62. [L 1987, c 45, pt of §2; am L 2022, c 27, §4]

Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0174C/HRS_0174C-.htmFetched: 11/10/2026