Ranch Ordered to Continue Water Supply

State orders county to step-up utility take-over.

By Zalina Alvi

The state has made its move in the West End water situation, ordering Molokai Properties Limited’s (MPL) Utilities to continue services for at least 90 days, and the county to begin preparations for taking over water and wastewater services.

The orders are part of the state’s efforts to make sure water and wastewater services continue on the West End following MPL’s announcement that it would discontinue services to 1,200 residents on Aug. 31 due to the utility companies suffering “substantial losses.”

In response, the county has requested that the DOH cancel the order, arguing that it has no grounds or legal authority to do so. The county has also begun the process to hire former Attorney General Margery Bronster for a potential cost of $100,000.

Orders to accept responsibility
“The Department of Health is exercising its authority to order immediate action to protect the public health from an imminent and substantial danger if the services are stopped,” said Laurence Lau, DOH deputy director for environmental health, in a July 21 news release.

According to the DOH, orders to the county are meant to give them time to figure out how to take over if the “essential services” and when the Utilities walk out.

The county’s preparations may include a physical assessment of the operations staff training and figuring out staffing needs.

The orders also require both the Utilities and the county to submit written reports on their progress to the DOH every seven days, effective immediately.

After the 90 days are over on Oct. 18, the DOH can review the status of the orders and decide if they should continue, or if other solutions must be explored.

“Our priority is to ensure uninterrupted water and wastewater service for the health and safety of the people of Molokai,” said Governor Linda Lingle in the news release. “While the county has the primary responsibility to operate and maintain public utilities, the state is prepared to assist the county.”

County Response
One day after the orders were released, the state department held a hearing in Honolulu for the companies and the county to present their arguments before a DOH Hearings Officer.

County Deputy Corporation Counsel Jane E. Lovell requested that orders be cancelled, arguing that the DOH has no legal authority to “require that the county bail out a private utility company, particularly one whose parent company seeks to retain all of its assets while passing on its liabilities onto the county’s taxpayers.”

“We have established through the testimonies of Department of Health witnesses that the county is not in violation of state law and so therefore the orders against the county should be dismissed,” Lovell said in a news release

However, Lovell has commented that the county is willing to provide assistance in the event that the Utilities do walk out.

“We are not going to abandon the Molokai residents,” Mayor Tavares said at a County water meeting held on Molokai earlier this month.

In a recent statement, Senator J. Kalani English, who represents Molokai, agreed with the county and condemned the orders. He argued that the state is setting a “dangerous precedent” and that forcing the county to take over the responsibilities of a business that has decided to “take its profits and abandon the people of Molokai adds insult to injury.”

Both MPL and the county also made note during the hearing that the DOH did not provide enough time for them to prepare since the orders were issued less than 24 hours before the hearing. The county made a request that the case be dismissed in reaction to the lack of evidence provided by the Attorney General’s office and MPL on July 22.

The hearing has been postponed until July 30, when it will resume in Honolulu.

Maui News recently reported that Lovell asked to have the hearing held on Molokai, or at least on Maui, but her request was denied, apparently because it would be too difficult for state officials.

Not the state’s kuleana
In a July 21 letter to Mayor Charmaine Tavares from Gov. Lingle, the governor expressed disappointment that the county had not “taken more affirmative steps in regard to its responsibilities.”

The letter, which placed the responsibility of maintaining water and wastewater services to the 1,200 West End residents on the shoulders of the county, quoted previous comments made by the Public Utilities Commission’s that share its views.

“I believe the county not only has the primary responsibility to ensure continued provision of water and wastewater services to the public, but is also best staffed, equipped and capable of doing so at the lowest cost to the residents of Molokai for the long-term,” Gov. Lingle wrote.

The governor went on to cite excerpts from the Hawaii Revised Statutes §46-1.5 outlining the county’s power to “establish and maintain waterworks and sewer works: to collect rates for water supplied to customers and for the use of sewers.

She also cited a passage that explained that the county’s board of water supply “shall manage, control, and operate the waterworks of the county and all property thereof, for the purpose of supplying water to the public in the county.”

In response to the mayor’s request that she declare a state of emergency, Gov. Lingle went on to say she was “carefully considering whether the use of emergency powers may be appropriate.”

She noted, however, that if she were to declare a state of emergency, it may simply result in the Governor’s Office directing county agencies, officers and employees to take care of the situation themselves