EAST KAUAI WATER USERS' COOPERATIVE
These rules are established to ensure the orderly, efficient, and equitable distribution, use and conservation of the water resources of the Cooperative. The Cooperative will endeavor to deliver irrigation water in a flexible, timely manner consistent with the physical and operational limits of the delivery system facilities. It is the policy of the Cooperative to render adequate and satisfactory service to all members, and to encourage courtesy to the members and public by all its employees. The Cooperative desires to cooperate with members to eliminate water waste and to minimize water assessments. The Cooperative delivers non-potable (irrigation) water within the limits of its capabilities. Non-potable water is generally suited for irrigation of agricultural or nursery crops. However, the Cooperative makes no specific recommendations and assumes no liability for damage to crops caused by the water or failure to deliver water for any reason. The Cooperative reserves the right at any time to change, delete or add to any of the following rules at its sole discretion.
Approved May 14, 2001
Section 1: Definitions
Section 2: Facilities
2.1 Control Of The SystemSection 3: Operation Of Irrigation System Facilities
3.1 Limits Of LiabilitySection 4: Duties Of Irrigator
4.1 Irrigator ResponsibilitiesSection 5: Delivery Of Irrigation Water
5.1 Water Allotment And ChargesSection 6: Water Quality
Section 7: Enforcement Of Irrigation Rules And Regulations
7.1 Termination Of District Water Delivery For Failure To Comply With Rules Or Regulations
As used herein, the following words, whether or not initially capitalized, shall have the following meanings:
"Board" means the Board of Directors of the Cooperative.
"Conduits" includes canals, laterals, ditches, stream beds conveying irrigation water, drains, flumes, pipes, measurement and control devices, and all related operational facilities.
"Cooperative" means the East Kauai Water Users' Cooperative functioning under the Agricultural Cooperative Associations Act of the State of Hawaii (421, HRS).
"Cooperative Conduits" mean conduit -- ditches, pipes, flumes, tunnels, etc. -- operated by the Cooperative under permit from the State.
"Cooperative Facilities" includes dams, structures, conduits, pumps, power plants, reservoirs, and all other facilities of the Cooperative.
"County" means the County of Kauai.
"Irrigable" means all parcels that irrigate and all those parcels greater than one acre with or without farm irrigation facilities that could be irrigated by Cooperative supplies.
"Irrigator" means the landowner or tenant of a parcel of land who has the primary responsibility for irrigating the parcel. The term includes the irrigator's officers, employees and agents.
"Landowner" means holder of title or evidence of title to land.
"Manager" means the General Manager of the Cooperative, and any and all employees under the general supervision of the General Manager.
"Pollutant" means any foreign or deleterious substance or material including, but not limited to, garbage, rubbish, refuse, animal carcasses, matter from any barnyard, stable, dairy or hog pen, unapproved herbicides, unapproved pesticides, or any other material which is offensive to the senses or injurious to health, or which pollutes or degrades the quality of the receiving water as defined by federal, state or local law.
"Red Tag" means a notice that water will be shut off in 24 hours for noncompliance with the Articles of Association, the Bylaws, the Water Use Agreement, these Rules and Policies or any other action taken by the Board of Directors
"State" means the State of Hawaii.
"Sidegate" means a control gate on a turnout from a conduit.
"Tenant" means a person or entity who leases, rents, or sharecrops land from a landowner.
"Turnout" means any pipe or cut in a Cooperative conduit which allows water to enter the irrigator's property.
"Vehicle" means any motor vehicle, self-propelled vehicle, motorcycle, motorized bicycle, or all-terrain vehicle.
"Water Allotment" means the base quantity of water which is set annually by the Board of Directors for each acre of land within the Cooperative which can receive Cooperative water from Cooperative facilities which comply with these rules.
"Water, available," means the quantity of water above the water allotment that is made available to each acre of land within the Cooperative that can receive Cooperative water.
The masculine, feminine, or neuter gender and the singular or plural number shall each include the others whenever the context so indicates.
2.1.1 Cooperative facilities are under the exclusive control and management of the Board of Directors and its authorized agent, the General Manager, and no other persons shall have any right to operate or interfere with said system in any manner.
2.2.1 Every Cooperative director, employee, or authorized agent or representative shall have free access at all times (including weekends and holidays) to enter any land irrigated with Cooperative water for any of the following purposes:
(1) inspecting Cooperative or private irrigation facilities, the flow of water within the facilities (including measurement), and the use of water on the land;
(2) determining the acreage of crops irrigated or to be irrigated; and
(3) maintaining or operating Cooperative facilities.
2.2.2 Members recognize and understand that most system ditches are State of Hawaii right-of-ways, and as such are owned by the State and not the adjacent landowner.
2.2.3 Members will endeavor to make access to the ditches easy for the Cooperative employees and realize that ditch maintenance will require passage through or over fences along property boundaries which cross the ditch right-of-way.
2.3.1 No trees, vines, shrubs, corrals, fences, or any other type of encroachment shall be planted, or placed in, on, over, or across any Cooperative conduit or any Cooperative right-of-way unless the Cooperative has given specific written approval for such encroachment.
2.3.2 Any unauthorized encroachment may be removed by the Cooperative at the expense of the encroacher.
2.3.3 Encroachments on a right-of-way that interferes with the operation or maintenance of that facility may be removed by the Cooperative at the expense of the encroacher.
2.3.4 When possible, fences built across the ditch right of way will be equipped with gates or passage way for use of Cooperative employees, so as to minimize the number of fences which must be climbed to service the ditches.
2.3.5 Cooperative members whose cattle have access to the ditch must minimize damage to the ditch banks caused by the cattle, and periodically repair such damage so as to maintain efficient flow in the ditch. Members will be notified if such damage occurs.
2.3.6 If it becomes necessary for the Cooperative to repair such damage by cattle, the repair will be at the expense of the member.
2.4.1 No diverting gates, weirs, structures, or pump intakes shall be constructed or placed in any Cooperative conduit until an application in writing has been made to the Board of Directors and permission granted therefore.
2.4.2 All such permitted gates, weirs, structures, or pump intakes shall be at the irrigator's expense, built to current Cooperative Construction and Engineering Design Standards as adopted by the Board, and shall become the property of the State upon completion.
2.5.1 No improvements such as buildings, bridges, gates, cross canal pipes, or facilities, etc., shall be constructed or placed in or over any Cooperative conduit without permission from the appropriate State and County agencies and the Cooperative board.
2.5.2 All such permitted bridges, gates, or other cross canal facilities shall be constructed, erected, installed, and maintained at the irrigator's expense and built to State and County Building Code.
3.1.1 The Cooperative will not be liable for damage of any kind or nature resulting directly or indirectly from any private ditch or conduit or the water flowing therein, or for negligent, wasteful, or other use or handling of water by the users thereof.
3.1.2 The Cooperative's responsibility shall absolutely cease when the water leaves the sidegate from a Cooperative conduit onto the irrigator's land or into a private conduit facility.
3.1.3 Non-potable water may be suited for the irrigation of crops. However, the Cooperative makes no warranty or representation as to such suitability, and the Cooperative shall not be liable for damage caused by non-potable water delivered by it. The member shall be responsible for studying water quality analysis data available on non-potable water, and shall be responsible and assume all risks on the suitability of the water for the purpose for which he uses it.
3.1.4 Employees of the Cooperative are strictly forbidden to demand or to accept personal compensation from members for services rendered to members in connection with the performance of their duties to the Cooperative.
3.2.1 The Cooperative will exercise reasonable diligence and care to deliver an adequate supply of water to the member, and to avoid shortages or interruptions in water service in its ditches, but will not be liable for any interruption, shortage, insufficiency of supply, or any loss or damage occasioned thereby.
3.2.2 Whenever, in the Cooperative's opinion, special conservation measures are advisable to forestall water shortage and a consequent emergency, the Cooperative may restrict the use of water by any reasonable method of control. During such periods, the Cooperative will deliver only such amounts of irrigation water, and at such times judged best by the Cooperative, to assure all members of receiving a fair share of available irrigation water for agricultural purposes.
3.2.3 The Cooperative encourages irrigators to investigate and implement efficient methods of irrigation.
3.2.4 The Cooperative reserves the right, at any and all times, to shut off water from the ditches without notice for the purpose of making repairs, extensions, alterations, or for other reasons. Members depending upon a continuous supply of water shall provide emergency water storage. Repairs or improvements will be made as rapidly as practicable and, insofar as practicable, at such times as will cause the least inconvenience to members.
3.2.5 The Cooperative will deliver water to the land of each member at such level, and at such outlet as the Cooperative may establish upon the member's land, convenient with the operation of the Cooperative's irrigation transmission system. It will be the responsibility of each member to provide for the distribution of such water upon his land by his own method.
3.3.1 The Cooperative's employees have sole right and responsibility to open any sidegate from a Cooperative conduit, and they have the exclusive responsibility to close such gate. The Manager may make arrangements with an irrigator allowing the irrigator to operate a sidegate during the period the irrigator is scheduled to receive water.
3.3.2 Any irrigator or group of irrigators may lock their sidegate(s) from the Cooperative facilities with prior written permission of the Cooperative.
3.3.3 The Cooperative may lock or require an irrigator to seal or remove, at their sole expense, a sidegate, turnout gate, or other valve where service from that facility is no longer desired, required by the irrigator, or subject to vandalism.
3.3.4 All turnouts from Cooperative facilities shall be gated or have another positive shut-off system easily accessible to the Cooperative employees within the Cooperative right-of-way.
3.4.1 Use of Cooperative canal bank roads and rights-of-way is at the sole risk of the user.
3.4.2 No person shall drive any vehicle upon any Cooperative canal bank road or right-of-way unless such person has received permission from the Cooperative to drive upon such road or right-of-way.
3.4.3 The following persons have permission to drive a vehicle upon a Cooperative canal bank road or right-of-way:
220.127.116.11 Any Cooperative director, officer, employee, or agent in the discharge of their duties.
18.104.22.168 Private parties actively involved with farming a parcel of land adjacent to the specific Cooperative canal bank road or right-of-way, or which require the use of a specific Cooperative canal bank road or right-of-way for access to irrigation facilities serving that parcel of land.
22.214.171.124 Any sheriff, police, fire, public safety or State personnel on official business.
126.96.36.199 Any Cooperative contractor who needs to use a specific Cooperative canal bank road or right-of-way to perform work under their contract with the Cooperative.
3.4.4 The Manager is authorized to adopt regulations setting forth the procedure to obtain permission to drive a vehicle on specific Cooperative canal bank roads or rights-of-way.
3.5.1 Any interference with or damage to any Cooperative facility, or the banks of any Cooperative conduit is prohibited.
3.5.2 Except for authorized Cooperative employees, agents and representatives, and persons authorized under these rules, no person shall be permitted to do any of the following:
188.8.131.52 To attach or place any boards, ropes, or any other object to, on or upon any Cooperative facility;
184.108.40.206 To place or remove a weir board in a weir or drop;
220.127.116.11 To remove any chain, board, post, or gate placed on or across any canal bank road of the Cooperative.
3.5.3 Any interference with or damage to Cooperative facilities by pedestrians, livestock, vehicles, parking of vehicles, or obstructions placed thereon is forbidden. Costs for repair of damages to Cooperative facilities shall be borne by the party causing said damage or obstruction.
3.6.1 Cooperative conduits shall be used solely for the authorized purposes of the Cooperative, including conveying irrigation water for use on land and for conveying drainage water away from the land. The use of Cooperative conduits for any other purpose shall be at the sole risk of the user.
3.7.1 All landowners or irrigators who pump from Cooperative conduits for the purpose of irrigating lands shall be governed in all respects by the rules and regulations applicable to landowners under gravity service, except system design flows.
3.7.2 The Cooperative shall not be responsible for any trash or debris that may flow or accumulate in the water, or for any interference with or decrease in the operation or capacity of any private pump installations or pipelines.
4.1.1 When water is made available to an irrigator by the Manager, the irrigator must have a responsible person present, and the land to be irrigated must be properly prepared to efficiently take the water.
4.1.2 From the time delivery of water is commenced to the completion of irrigation, the irrigator shall, day and night, attend and control the water.
4.1.3 When water is delivered to the irrigator, the irrigator shall be responsible for the water at all times after it leaves the Cooperative conduit.
4.1.4 The irrigator is responsible and liable for any damage caused by the irrigator's negligence or careless use of water, or the result of failure of the irrigator to properly operate or maintain any ditch, pipeline, or other facility for which the irrigator is wholly or partially responsible.
4.1.5 It is the irrigator's responsibility to close all of the irrigator's private valves at the end of each irrigation.
4.1.6 It is the irrigator's responsibility to clear the common facilities by opening stopgates and closing sidegates, unless directed otherwise by rules of that distribution system.
4.1.7 It is the irrigator's responsibility to call the next irrigator in line and inform them in a timely manner that they are going to receive the water. It is also the irrigators responsibility to call the Manager immediately after the irrigation to report irrigation times on and off. Irrigation time may be estimated by the Manager, if the irrigator does not call in a timely manner.
4.2.1 All water must be applied efficiently and used in a reasonable and beneficial manner.
4.2.2 Any irrigator who wastes water on roads, vacant land, or land previously irrigated, either willfully, carelessly, or on account of defective or inadequate conduits or facilities, or inadequately prepared land, or who floods a portion of the land to an unreasonable depth or amount in order to irrigate other portions, or floods across one parcel to irrigate another parcel, may be refused Cooperative water until such conditions are remedied.
4.3.1 All private conduits must be kept free from weeds and other obstructions, be of sufficient capacity, and be properly constructed and maintained to carry the flow of water applied for, without the danger of breaks, overflow, or undue seepage.
4.3.2 The Cooperative may shut off the delivery of water to any private facility not meeting the above requirements and require them to be cleaned, repaired, or reconstructed before water is turned into them.
4.4.1 All measurements of water delivered by the Cooperative to irrigators shall be made by the Cooperative at the Cooperative sidegate. The Cooperative shall maintain records of the names of each irrigator, the parcel that each irrigator has irrigated, the number of acre feet of water used by each parcel, and other such irrigation and operations information as required by the Manager.
5.1.1 Each year the Board of Directors shall establish the quantities of water and the charges for each quantity of water.
5.1.2 Charges and assessments for maintenance, operation and construction will be billed on the Cooperative Statement of Assessment for the current calendar year as governed by the policies of the Board of Directors.
5.1.3 All water charges and other irrigation or drainage related charges shall be due and payable as stated by Board Resolution and notices in billing statements.
5.1.4 In the absence of accurate means to measure water delivery, assessment will be made on the basis of acres of irrigated land at one million gallons per acre per year.
Each prospective member will be required to sign the standard application form for water service desired, assuming responsibility for payment of future member fees. The person signing the application form shall be the member and be held liable for the payment of all fees. Owners, lessees, occupants or users of lands located in the Lihue District or Kawaihau District, Kauai, Hawaii, who are producers of agricultural products and use water from the water system may become members of the Cooperative.
5.3.1 The Cooperative may refuse to furnish water to any parcel if outstanding charges for water or services already furnished or rendered such parcel (including any accrued interest and penalties) have not been paid in full by the Cooperative's prescribed payment date.
5.3.2 The Cooperative may refuse to furnish water to any parcel to which the Cooperative holds title by virtue of a collector's deed or on which the Cooperative has an outstanding unredeemed certificate of sale for the nonpayment of an assessment.
5.4.1 Irrigation water will be provided to the irrigator either on the basis of use from the normal flow of the ditch, or on the basis of an arranged demand delivery according to the needs of the irrigator and the capacity of the system in the particular area.
5.4.2 The Manager will endeavor to meet the scheduled time of delivery within the capacity limitations of the Cooperative facilities while maintaining efficient and equitable water distribution between irrigators. A time limit may be applied to each delivery of water to prevent unreasonable use or waste of water. Delivery of water to parcels not in the original water order may be curtailed to meet previously scheduled deliveries.
5.4.3 To schedule an irrigation, the irrigator must place an order with the Manager. In the water order, the irrigator should give a reasonably close estimate for the length of irrigation time the water will be used for each individual parcel intended to be irrigated. The irrigator will confirm the delivery flow for each parcel with the Manager. The Manager, within twenty-four (24) hours of receiving the irrigation request will give the irrigator an estimate of the date when water will be available, and will later attempt to give the irrigator at least twelve (12) hours notice of any change in time of delivery. The irrigator must have his land ready to receive water when the water request is made. Water will be made available on requested specific dates, if it does not jeopardize service to another customer or operation of the canal system.
5.4.4 The Manager will provide a service to water users by informing and advising each irrigator of the anticipated time of water delivery to his parcel of land and the persons water is to be received from and passed on to. The Manager will confirm information on flows, sidegate operation, and any special instructions related to the delivery.
5.5.1 If an irrigator fails or refuses to continuously use the entire head of water normally delivered to him, then the following shall apply:
18.104.22.168 The full amount will be charged to the irrigator;
22.214.171.124 The irrigator shall not be entitled to use the unused portion of water at any other time;
126.96.36.199 The irrigator will be required to reschedule for delivery of water;
188.8.131.52 The irrigator may not be allowed to reschedule water for a five (5) day period because of repeated refusals of previously scheduled water.
5.5.2 The Cooperative will endeavor to utilize canceled water to the benefit of other irrigators and that portion so utilized will not be charged to the irrigator described in Section 5.5.1.
5.6.1 When a break occurs in any private facility necessitating an interruption of irrigation service, the irrigator whose irrigation was interrupted, shall be allowed, when service is restored, to finish irrigating before water is taken from the irrigator.
5.7.1 Any person who uses the Cooperative water without the Cooperative's permission may become subject to criminal prosecution and civil liability.
5.7.2 First time use of the Cooperative's water without the Cooperative's permission may result in an additional charge, for the water taken, at the rate set by the Board for the unauthorized use of water.
5.7.3 Subsequent taking of water without permission shall result in forfeiture of irrigation water for the remainder of the season and an additional charge, for the water taken, at the rate set by the Board for the unauthorized use of water.
5.7.4 If the Cooperative cannot make a reasonable estimation of the water taken, the average irrigation in acre-feet of the parcel irrigated without the Cooperative's permission shall be used for assessing the additional charge.
5.8.1 Water entitlements of irrigators who utilize private conduits shall be delivered to the head of these facilities by the Cooperative. It shall be incumbent on the irrigators to control the actions of individuals taking water from private conduits.
6.1 The Cooperative makes no guarantee of water quality at any time.
7.1.1 Failure or refusal of any landowner or irrigator to comply with any of these rules or applicable regulations ("Water Company Rules") shall be sufficient grounds for terminating delivery of Cooperative water to the lands of such landowner or irrigator, and water shall not again be furnished until full compliance with all rules and regulations.
7.2.1 The Manager is authorized to issue a Notice and Order to any landowner or irrigator the Manager determines is in violation of any rule or regulation. An oral or written warning may be issued in lieu of a Notice and Order.
7.2.2 The Notice and Order shall contain a brief description of the alleged violation, a statement of the action to be taken by the landowner or irrigator, and an explanation that a written appeal must be filed within ten (10) calendar days of the date of service of such Notice and Order or the person waives all rights to a hearing on the matter before the Cooperative's Board of Directors.
7.3.1 The Manager is authorized to immediately terminate the delivery of Cooperative water to a parcel under any one of the following circumstances:
184.108.40.206 If the land or irrigation facility in question is in such a condition so as to make it immediately dangerous to any person, to the public, or to any property, including but not limited to the flooding of property;
220.127.116.11 If the landowner or irrigator has failed to comply with a prior Cooperative Notice and Order or warnings pertaining to the same or similar problem;
18.104.22.168 Such other circumstances as are described in regulations adopted by the Manager pursuant to Section 9.1.
7.3.2 Notice of an immediate termination of the delivery of Cooperative water shall be by service of a Notice and Order with a Red Tag.
7.3.3 When a Red Tag is issued, the Board will be notified at the next Board meeting.
7.4.1 Each Notice and Order and Red Tag shall be served upon the landowner or irrigator either personally or by regular mail to each such landowner or irrigator at the address indicated in the Cooperative's records. Service by mail shall be effective on the date of mailing. The Red Tag may also be posted on the affected land or irrigation facility.
7.5.1 A Notice and Order becomes final if a written appeal is not filed within ten (10) calendar days of the date of service of such Notice and Order. The Manager decision becomes final if a written appeal to the Board is not filed within the (10) calendar days of the date of service of the decision. The Board's decision becomes final on the day the decision is issued.
7.5.2 After a Notice and Order or a decision of the Manager or of the Board has become final, no person to whom any such order or decision is directed shall fail, neglect, or refuse to obey any such order or decision.
7.5.3 If, after an order or decision has become final, the person whom such order or decision is directed fails, neglects, or refuses to comply with such order or decision, the Cooperative may refuse to furnish water to the land in question and the Cooperative may institute any other appropriate action under these rules or applicable law.
7.5.4 Whenever any order, action or repair is not commenced within seven (7) calendar days after any order or decision has become final or is not pursued with sufficient diligence to enable the order action or repair to be completed within the time established for compliance, the Manager may issue a Red Tag if a Red Tag has not already been issued.
7.6.1 Any landowner or irrigator affected by the Notice and Order and or Red Tag may file an appeal.
7.6.2 When a Notice and Order is issued without a Red Tag, a written appeal must be filed with the Manager within ten (10) calendar days of the date of service of such Notice and Order or the person waives all rights to a hearing on the matter by the Board.
7.6.3 When a Notice and Order is issued with a Red Tag and water delivery is terminated, a written appeal must be filed directly with the Board within ten (10) calendar days of the date of service of such Notice and Order or the person waives all rights to a hearing on the matter.
7.6.4 If the final decision requires compliance with the Notice and Order or any portion thereof and delivery of water is terminated to the land in question for failure to comply with the Notice and Order, no further appeal is allowed and the landowner or irrigator must fully comply with the Notice and Order and with all rules and regulations before water will be delivered.
I, _________________________________________ herby certify that:
I am the duly acting Secretary of the EAST KAUAI WATER USERS' COOPERATIVE, a Hawaii Agricultural Cooperative (HRS Chapter 421); and
The foregoing Rules comprising thirteen (13) pages constitutes the original Rules of said Corporation as duly adopted by the initial incorporators of the Corporation who signed the Articles of Incorporation on ________________, 20_____ and the Bylaws on __________________, 20____.
In Witness whereof, I have hereunder subscribed my name this ______ day of _________________, 20____.
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