KAILUA-KONA — Developers, businesses and single-home builders aren’t supposed to construct new cesspools anywhere in Hawaii, but a labor shortage within one Hawaii County department creates what is essentially a loophole, leaving open the possibility to do just that on the Big Island.
Gov. David Ige banned construction of new cesspools statewide in March of 2016. A little more than a year later, the state Legislature passed a law declaring every cesspool operator must transition away from cesspools by or before 2050 — putting roughly 50,000 transitions in the works for Hawaii Island, where cesspools are more prevalent than the rest of the state combined.
Every building permit Hawaii County has issued over the last two-plus years since the law change has come with a strict no-cesspool stipulation. The county adopts and enforces building code, while the state Department of Health (DOH) implements and enforces health code involving wastewater systems through county district health offices.
However, building permits are governed by the rules in place at the time the permits were issued, which applies to both county building code and state health code. Therefore, any permit issued prior to the law change in 2016 has already gone through the district health office review process and would be exempt from a no-cesspool stipulation.
In other words, if a builder obtained a permit pre-2016, that builder can legally install a cesspool. Considering expiration guidelines in Hawaii County Code (HCC), however, this problem wouldn’t appear all that severe.
According to HCC 5-22, the county renders permits null and void either three years after issuance, or 180 days after issuance if the applicant hasn’t begun the work. The rule stipulates the county may grant an extension as long as six months.
More specifically, the county renders owner-building permits null and void five years after issuance, Barett Otani, spokesperson for the Hawaii County Department of Public Works (DPW), wrote in an email to West Hawaii Today. Although there are circumstances under which the county might allow an applicant to suspend construction and re-initiate it later, he added.
Thus, it would only be a matter of time, roughly three more years, before all building permits with grandfathered-in cesspool exemptions would be null and void. That time limit should have put a ticking clock on the concern that builders will continue to construct new Hawaii Island cesspools.
But it hasn’t.
That’s because of a labor shortage. Hawaii County isn’t voiding building permits it issued five or more years ago simply because it doesn’t have the manpower to do so.
“Due to personnel constraints, null and void permit administration/enforcement is not current,” Otani wrote. “Additional personnel would be required to administrate/enforce building permit expirations.”
The DPW’s Building Division has lobbied the county for more personnel, Otani continued, but those requests have not been granted.
To put it simply, the county has rules in place to phase out building permits equipped with a DOH exemption for cesspools but lacks the mechanisms to enforce them.
So theoretically, building permits issued decades ago and subject to long-outdated building and health codes may still be floating around — and eligible to be put in play.
Neighbor county policy
The Maui County building department said a building must be completed within five years, save for special circumstances, or inactivity would render the permit expired. This is a rule the office said it enforces.
The Kauai County Building Division said it, too, enforces expiration dates. Builders have 180 days to call for an initial inspection and schedule subsequent inspections at the same time intervals until a project is completed.
The division does reapprove permits after delays, but new inspections on the part of building, planning and health departments must be approved. If the health department requires a builder upgrade its system, Kauai County will not issue a permit until the builder implements that upgrade.
As for the Big Island, it’s unclear if any Hawaii County Council members were aware of the manpower issue that, in effect, creates a loophole for old building permits to dodge the state’s law on no new cesspools.
Kona Councilman Dru Kanuha said he was first made aware of the concern when long-time radio newswoman Sherry Bracken raised questions about it at a June 29 public meeting on cesspools, which DOH convened at the West Hawaii Civic Center Council Chambers.
“We need to make sure that we’re not permitting any new cesspools, and if these permits are expired, we need to make sure that these permits become null and void,” Kanuha said. “So basically, somebody within the department needs to follow through on these permits.”
Whether the building department will simply have to do more with less or if some money might be made available to fund a position will have to be ironed out.
Disaster relief and lost property tax revenues due to the ongoing Kilauea volcano eruption in Puna have taken a sizable bite out of an already stressed county budget. However, with the council’s passage of a general excise tax increase, roughly $20 million in extra revenue will pour into county coffers in each of the next two years.
That money can only be spent in specific ways, but it should free up funds from other areas and give the county some maneuverability to address issues like outdated building permits with cesspool exemptions.
However, the tax will not take effect until Jan. 1, 2019, and just how many builders might be taking advantage of the loophole is unclear.
WHT has yet been unable to obtain an exact number of permits that should have been voided but remain active. Otani said Hawaii County DPW is unaware of any current developments or single-home projects planning to install a cesspool, but the building department wouldn’t necessarily be aware if such installations were taking place.
Troy Taguma, vice president at Hawaii Precast, a company in Kailua-Kona that sells cesspool fixtures, spoke to cesspool-related sales since new state laws were passed.
“In the last year, I would say, (sales) kind of slowed down,” he said.
Kohala Coast Concrete &Precast LLC, which also sells cesspool equipment, couldn’t be reached for comment by press time on Friday.
Keith Kawaoka, deputy director of the DOH Environmental Health Branch, said that as long as a previously approved permit remains valid, having already passed the DOH inspection phase during the issuance process, the builder could technically erect a structure complete with a cesspool — and do so legally.
Neither the county building department nor the state is scheduling inspections of wastewater systems following the initial review to obtain the building permit.
Thus, builders may be installing new cesspools right now without notifying any entity, and they wouldn’t be without incentive to do so.
For starters, any applicant who received a cesspool exemption pre-2016 couldn’t just switch to a septic system and continue about their business. Such applicants would be forced to reapply for a building permit because DOH must sign off on any wastewater system installed.
The same process will apply to the 50,000 cesspool operators already existing on Hawaii Island when they begin state-mandated upgrades at some point over the next 30 years. Between DOH review and physical installation, the process may take several months, Kawaoka said.
Beyond that, septic tanks are more expensive than cesspools, which are little more than holes in the ground.
The cost of upgrades range between $10,000-$30,000, Kawaoka explained. And while initial installation of a septic system over a cesspool might be a little cheaper for a new builder, using their cesspool exemption is good business in the immediate.
It saves the builder both time and money.
“If you’re looking toward the future and want to do the right thing, you’d probably want to reapply for the building permit,” Kawaoka said. “But if you want to save money and have this approval already, (you might think) ‘Hey, I can do it. I’ll worry about (upgrading) later.’”
Builders who install cesspools would still be subject to a transition by 2050, but pushing cost down the road can be an attractive strategy.
Furthermore, DOH has admitted septic systems aren’t significantly superior solutions to cesspools when it comes to pollution, and mass sewering isn’t a possibility across the county considering Hawaii Island’s geological makeup.
Many homeowners facing upgrades are choosing to wait the process out, hoping for another law change or a superior, potentially cheaper, solution to emerge down the road. It would stand to reason builders with legal protections to install cesspools now might do the same.