The matter is on today's Board of Land and Natural Resources agenda.

If the panel meeting in Honolulu agrees with its staff recommendation, developer CGM LLC, would have 60 days to either reapply for a conservation district use permit or remove the 100,000-gallon water tank being used by the Department of Water Supply to store water supplied to country estates residents.

Failure to reapply for the permit also could result in fines of $2,000 per day, and the ongoing violations could be referred to the Department of the Attorney General for action.

The water tank is on nearly 1.2 acres about 800 feet above sea level and on the slopes overlooking the Wailuku Country Estates, an agricultural subdivision on former C. Brewer land. The property is owned by Wahi Ho'omalu Limited Partnership, but, according to the land board's staff report, it has been used by the water department since the subdivision was completed in 2002-03.

In November, the state levied $15,000 in fines for violations of state law and administrative rules for the unauthorized building of the water tank as well as road/utility and drainage easements, the placement of utility poles, grubbing, grading and land clearing and the installation of a fence. That fine has been paid.

Attorney Tim Lui-Kwan, who represents CGM, did not return a call from The Maui News seeking comment.

The staff report indicated there was confusion about whether a state water use permit was needed for the water department to use the tank. An official with the water department confirmed the tank is being used, but the water department has easements to use the tank and state permits to draw water from sources in the area.

A conservation district use permit for the water tank remains the responsibility of the developer, the official said, and the water department is waiting for the property to be subdivided and conveyed to the county.

The hang-up with the landowner's application for an after-the-fact permit stems from repeated, unsuccessful attempts by staff of the state Office of Conservation and Coastal Lands to get the developer to complete the environmental review process. State officials said they need the developer to address comments received on the application and to submit a final environmental assessment, but those had not been received as of yesterday.

"Staff believes that any program or project that triggers the environmental review law must complete the environmental review process before final approval can be granted," the report says. "At this point, staff is hesitant to recommend approval for any entitlement of this water system without the applicant taking the necessary and required actions for the use of this water resource."