The Water Commission: An Idea Whose Time Has Passed

posted in: July 2010, Water | 0

If they dream – and who is to say they don’t? – Hawaiian gobies (o`opu) would certainly dream of free-flowing streams, of cool riffles and shaded, still pools. This, after all, is the habitat in which they evolved over millennia. For those species that originated here, it is the only habitat they have ever known.

Throughout the islands, over the last century and a half, gobies’ dreams have been denied by the diversion ditches of sugar planters and the lifeless, cement-lined troughs touted as flood-control systems. What Hawai`i’s unique, amphidromous fresh-water fish have been left with are stream beds that rarely see water and stream mouths that fail to deliver the signals goby fry need to begin their journey back to the upstream areas where they spend their adult reproductive lives.

The planters who put the streams into their ditches, by means of diversions cleverly designed to leave no drop in the reaches below, had dreams as well — of lush, green fields of cane and uninterrupted years of profit. Stream water on Maui has allowed them to realize those dreams, but at the expense of the o`opu and other native aquatic species. And not them alone. Hawaiians wanting to continue or resume their traditions of gathering and of growing wetland taro have also suffered as their sources of water have disappeared. As streams dried up, so, too, did the aquifers below them as they near the coast. Areas once wetted by streams and springs – Kealia Pond, for example, or Waihe`e wetlands – are barely able to support the waterbirds and other aquatic life that once flourished there.

For more than two decades, the Hawai`i Commission on Water Resource Management has been charged with establishing some balance between these competing visions of streams by setting instream flow standards. Given the inherent difficulties of the task, the commission initially adopted non-quantified “interim” flow standards, reflecting the status quo. It was widely thought that, as commission staff gained knowledge of the demands made of stream resources, the commission would on its own adopt more permanent flow standards and even identify and protect streams having high value for recreation or resources. That, too, was a dream, undercut by the harsh realities of insufficient information and, frankly, a complete failure of nerve in the face of the political and economic juggernaut represented by the planters.

The planters have disappeared – all, that is, but Hawaiian Commercial & Sugar, or HC&S, a subsidiary of Alexander & Baldwin. On Maui, HC&S cultivates more than 30,000 acres of sugar, irrigated by water from streams on the eastern side of the island (some 167 million gallons a day) and the western side (more than 50 mgd). In recent years – and by recent, we mean over the last decade – the Water Commission has struggled with demands from environmentalists and traditional stream users that the dewatering of Maui streams cease.

Legislative vs. Judicial

As described elsewhere in this issue, the commission took two different approaches to the demands: in East Maui, it held public hearings and asked for (though it apparently really didn’t want) information on technical matters from the commission’s staff, the Department of Land and Natural Resources’ Division of Aquatic Resources, and the U.S. Geological Survey. For the West Maui streams, known as Na Wai `Eha, it proceeded with a contested-case hearing, with each party to the dispute presenting expert witnesses subject to cross-examination by the others.

In the end, the route taken did not matter. The result was the same. Streams and the wildlife they support, and those seeking their restoration, whether for customary stream uses or for environmental reasons, lost out. A&B, Wailuku Water Company, and and Maui County, which has come to rely on HC&S as a kind of wholesale provider of water to the county municipal system, won out. To be sure, some streams will see a bit more water in their lower reaches, but the total amount restored to streams is embarrassingly small: on the east, 14 of 27 streams received increased flows totaling at most, during the wet season, around 20 million gallons a day; on the west, two of four streams will see flows increased by about 12.5 mgd. Compared to the volume of water removed from the streams – well over 200 mgd – these increases seem, well, the word stingy comes to mind.

The Waste

In the case of both the East and West Maui diversions, far more water is wasted daily than has been proposed for restoration. In East Maui, A&B has admitted it has no precise handle on the amount of water lost to leaks in unlined ditches, but has suggested that anywhere from 10 to 15 percent of the diverted water might be lost in this fashion. That comes to more than 25 million gallons a day of waste. In the area of Na Wai `Eha, losses to waste have been pegged by the diverters themselves at between 9 and 12 mgd (A&B) and 4 mgd (WWC), for a total of some 16 mgd.

A&B claims it cannot afford to address the waste. As Alan Murakami of Native Hawaiian Legal Corporation points out, that’s only because the water is so cheap. Still, the commission has been swayed by A&B’s crocodile tears and is requiring only that, in the case of East Maui, sometime in the next three years, it prepare a plan to measure the waste. (On the other hand, Maui County, which diverts about 7 mgd into its municipal system, of which it estimates 14 percent is lost to leaks, is being required to repair its system within three years.) In West Maui, the commission is requiring that A&B stop the losses associated with its unlined Wai`ale Reservoir (estimated at between 6 mgd and 8 mgd a day), and halve the remaining losses, “for a total reasonable loss of 2 mgd.”

Even in this case, however, the burden the commission has foisted upon A&B is light. In return for requiring losses to be reduced, it has given A&B rights to a well – Well No. 7 – that has been out of service for some years. And instead of rating the well’s productive value at around 19 mgd, based on past usage, the commission has discounted it to 9.5 mgd. In other words, whatever A&B may have lost to streams, it can more than make up with water from Well No. 7.

Lawrence Miike, in his scathing dissent, describes this as the turning point in his decision to break from his fellow commissioners. By lowering the well’s rated productivity, the commission effectively justified its decision not to restore 9.5 mgd to `Iao Stream, and thus fell short of restoring 22 mgd. Miike had proposed restoration of more than 30 mgd, but had been willing to go along with 22 mgd. The shenanigans over Well No. 7 put paid to any prospect of his consent.

Implementation

In his proposed decision and order, Miike had recommended the commission require HC&S and WWC to “immediately remedy significant system losses.” Language approved by the commission merely requires them to “aggressively address” such losses. It requires “new diversion infrastructures and gauges” on all four streams, and to modify diversions that cut off all flows, “in order to allow recruitment of stream life past the diversions.” Something along the lines of a fish ladder is proposed to mitigate the 20-foot vertical concrete drop on `Iao Stream that makes it impossible for gobies and other amphidromous species to return to its upper reaches; the diverters are instructed to work with commission staff in devising this.

A deadline of two months from the commission’s decision (that would be mid-August) is imposed for fixing diversions on Waihe`e River and Waiehu Streams “that can be easily modified.” For other diversions, action is required within one year. Given that stream flows in East Maui still have not been restored according to the commission’s order two years ago, one may be forgiven for thinking the diverters’ compliance with these latest timelines may be less than scrupulous as well.

Insults to Streams

Protection and restoration of streams and the customary and traditional uses associated with them are among the commission’s primary purposes, as set forth by law. Over the last two decades, however, the zeal with which it has pursued these goals has undergone a slow transformation. Initially, the commission seemed enthusiastic. One of the commission’s earliest projects was compilation of a comprehensive inventory of stream resources, which resulted in publication of The Hawai`i Stream Assessment in 1991. This was to be used as a guide to designation of important streams worthy of extra protection. Nothing resulted from that.

In 1992, the Stream Protection and Management (SPAM) task force was established as a result of a legislative resolution. Over the next year, it held nine public meetings across the state, went on site visits, and held deliberations facilitated by a mediator. The result was a report containing consensus recommendations as well as commentary by individual task force members (including A&B vice president Meredith Ching) setting forth the positions of their respective constituents. The commission received their report, but did nothing else.

From 1994 on, the commission was consumed with the Waiahole contested case hearing. As Miike notes in his dissent from the Na Wai `Eha order, Waiahole did result in flows being restored to Windward O`ahu streams, but only after the state Supreme Court weighed in on the matter (twice).

State law requires the commission to give to the Legislature each year a report on what it has done to identify rivers and streams worthy of protection. For most of the last decade, the report has been nothing more than a recap of litigation, whether before the commission or the courts. The report for 2010 has not yet been submitted and is more than seven months overdue.

A Third Way

The commission itself now seems to suggest that the contested-case approach to stream restoration may not be the best way for deciding disputes over stream flows. There is “a great deal of value” in “the quasi-legislative process used in East Maui,” the commission says in its Na Wai `Eha decision and order. “There is a great deal of value in being able to hear testimony from the public and to be able to question and continue gathering information for consideration up to the decision point,” the majority write.

But the East Maui decision is almost certainly going to wind up in a contested-case hearing. And no matter what the outcome there, both it and the decision in Na Wai `Eha will inevitably end up, as Waiahole did, in the courts.

In short, the only purpose that the Water Commission seems to serve these days, so far as stream restoration is concerned, is to give diverters years, even decades, of water as the challenges to their use drags through the commission’s unwieldy processes. Even after it issues its milquetoast orders, it lacks the staff – to say nothing of the will – to enforce them.

If the Legislature had tried to invent a means of paying lip service to streams while leaving status quo diversions intact and flourishing, it would have been hard pressed to come up with a better solution than the Water Commission. Now that the commission has shown its distaste for making responsible decisions that fulfill one of its most important missions, it is time to come up with an alternative. Perhaps a hearings master whose decisions are binding. Perhaps an environmental court that specializes in natural resource issues.

Whatever the answer, the fact remains: the Water Commission, as a tool for resolving stream disputes, is utterly, hopelessly broken.

 

Volume 21, Number 1 July 2010

 

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