Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2003

State of Hawaii

Sir:

Your Committees on Water, Land, and Agriculture and Ways and Means, to which was referred S.B. No. 254, S.D. 1, entitled:

beg leave to report as follows:

The purpose of this measure is to amend a prior appropriation to demolish and rebuild a bridge crossing the Waimea Irrigation System in Puukapu Homesteads, Second Series Puukapu, South Kohala, Island of Hawaii.

Testimony in support of this measure was submitted by five concerned property owners. Testimony in support of the intent of the measure was submitted by the Board of Agriculture.

This is an emergency appropriation, amending an existing appropriation of capital improvement funds. In accordance with Section 9, Article VII of the Constitution of the State of Hawaii, the Governor requested the immediate consideration and passage of this measure, per G.M. 266. Because the timely passage of the General Appropriations Act of 2003 cannot be assured, this measure was requested to attend to the unsafe condition of the existing bridge.

Your Committees find that homeowners, on Kamuela property that was subdivided to two-acre parcels in 1926, have built a wooden bridge across a state-owned and managed irrigation ditch. The ditch, which was used to irrigate sugar cane fields along the Hamakua Coast, was managed by the Department of Land and Natural Resources until the late 1980s, when it was transferred to the Department of Agriculture. Since the time the State began managing the irrigation ditch, a cattle crossing wide enough for pedestrians but not vehicles spans the ditch about a hundred yards from the wooden bridge. The cattle crossing fulfills the State's lease requirement for a bridge over the ditch. In the 1970s, however, residents of the subdivision built a wooden bridge, wide enough for motor vehicles, to access several lots on the other side of the ditch. The bridge is the only vehicular access to the lots on the other side of the ditch, and it connects to a private road that was built and is maintained by the landowners. The landowners did not obtain an easement for the bridge, nor do any county or State records show that permission was granted or requested, according to the Department of Agriculture.

Recently, some residents approached the administration, requesting assistance with the bridge, which is currently in a state of disrepair and so unsafe that emergency fire and medical vehicles and the gas company refuse to drive over it. The residents raised the issue that the Department of Agriculture may be liable for any accidents arising from the bridge because the bridge crosses a state-owned water ditch.

Your Committees expressed many concerns about this measure and about the State's existing and potential liability surrounding the bridge. Because the bridge was built illegally, condemning and closing the bridge may be enough to remove liability. The Department of Agriculture (Department) was asked whether a sign had been erected warning of the bridge's dangers and closing the bridge to vehicular traffic. The Department responded that a sign was not there now, but would be erected. The Department also stated that the Attorney General's office was investigating the State's existing liability in this situation, and should there be any liability, how best to absolve the State and make any such bridge the landowners' responsibility. Members of your Committees wondered whether that would be possible now that the State has notice of the existence of the bridge. Your Committees would like to make it clear that they do not believe that the State is currently liable, and would like to ensure that the State will not ever be liable for this bridge and actions occurring on or around it.

Your Committees also expressed concern about the lack of knowledge about how many such illegal bridges cross the State's irrigation ditches, and whether an inventory has been taken. The Department said that such an inventory was in the planning stages, but that it doubted many such bridges as this one existed. Your Committees noted that this measure may set a precedent for private landowners and developers expecting the State to provide them with improved access infrastructure without an easement, and they requested that an inventory of the irrigation ditches be done.

Another concern of your Committees is the type of replacement bridge to be built, if one was. Simply building another pedestrian crossing would be redundant to the cattle crossing. Building a vehicular crossing, or any crossing, with State funds may automatically open the State to possible suits, even if the bridge was built to required safety standards, as the Department plans. The amount of money requested by the measure would only allow for construction of another wooden bridge, which would also not be strong enough for emergency vehicles (or other vehicles weighing more than 6,000 pounds) to cross.

Your Committees questioned the practicality of the plan, and whether this project would better fall under a request for an agricultural loan. The Department responded that it was unlikely because not much agricultural activity exists on the other side of the ditch, although the subdivided land is in an agricultural district. Your Committees also asked whether the subdivision's landowners would be involved in a cost-sharing program for the bridge, and it was determined that this may be the case if Hawaii County was involved in building the bridge to standards that would allow emergency vehicles to cross.

Your Committees find that more research is needed on these issues, and believe this measure should continue in the legislative process to promote further discussion. Therefore, the measure has been amended to remove mention of state liability and to change the effective date to June 30, 2050.

As affirmed by the records of votes of the members of your Committees on Water, Land, and Agriculture and Ways and Means that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 254, S.D. 1, as amended herein, and recommend that it pass Third Reading in the form attached hereto as S.B. No. 254, S.D. 2.