Commission’s Order on Na Wai `Eha Baffles Its Most Experienced Member

posted in: July 2010, Water | 0

After all the evidence and expert testimony presented during the Na Wai `Eha contested-case hearings in 2007 and 2008 on the minimum flows necessary to protect stream habitats and other instream values, which numbers did the state Commission on Water Resource Management finally go with?

The ones that were never intended to be used for that purpose, at least not exclusively. Ones that were proposed as part of a U.S. Geological Survey study on how Waihe`e River and `Iao and Waiehu streams would respond if water was allowed to flow to the sea past diversions installed by Hawaiian Commercial & Sugar and Wailuku Water Company a century ago.

Back in 2006, when the contested-case hearing over a petition to amend the interim instream flow standards (IIFS) for Waihe`e River, and `Iao, Waikapu, and Waiehu streams (collectively known as Na Wai `Eha) and over water use permits for the `Iao high-level aquifer was just beginning to ramp up, the USGS requested that HC&S and WWC, which together divert more than 50 million gallons of water a day from those streams, temporarily release water into `Iao and Waiehu streams and Waihe`e River. The USGS didn’t propose any releases for Waikapu Stream at that time.

The controlled releases, which would have occurred in three phases with increasing amounts of water released in each successive phase, would have allowed the USGS to measure stream flow, infiltration, and the physical habitat under different flow conditions in stream sections that are now often dry, USGS hydrologist Delwyn Oki stated in testimony submitted in the case.

Oki noted that the controlled releases were not designed to predict the abundance of native aquatic species under different flow conditions, but were intended to determine the effects of flow on habitat.

Even so, in its June 10 decision on the case, the Water Commission adopted the USGS’s proposed Phase 1 controlled releases as the IIFS for Waiehu Stream and Waihe`e River: 10 million gallons a day for Waihe`e River, 1.6 mgd for North Waiehu, and 0.9 mgd for South Waiehu, for a total of 12.5 mgd below the diversions and, after stream losses, about 7 mgd at the mouth.

The USGS had proposed a Phase 1 release of 9.5 mgd for `Iao, but the commission chose not to implement it because, as it stated in its decision, the stream’s channelized sections and a steep drop-off limited the potential for ecological improvement.

The commission also chose not to restore water to Waikapu Stream because it reached the ocean only occasionally and, therefore, was believed to have little habitat restoration potential – this despite testimony from HC&S and the USGS that controlled releases would help resolve whether Waikapu flows to the sea under natural conditions.

“All they [the USGS] were doing was studying the hydrology,” Earthjustice attorney Isaac Moriwake told Environment Hawai`i. “That’s the context of all this.” Moriwake represents Hui O Na Wai `Eha and the Maui Tomorrow Foundation, which petitioned to amend the IIFS of the four streams in 2006 to protect kuleana uses, traditional and customary practices, and stream health.

When asked why the commission went with USGS’s numbers, commission chair Laura Thielen said, “There was a variety of experts involved. The USGS is one of them. But I don’t think I can reveal the substance of deliberations. I think those are confidential. The commission spent a lot of time deliberating, asking questions of our counsel and the hearing officer [commissioner Lawrence Miike] and there was a spectrum of opinion of what would be the appropriate levels…The bulk of us arrived at a decision we felt comfortable signing.”

Initial Reaction

Whether or not it was appropriate for the commission to base its IIFS on numbers proposed as part of a hydrology study is just one of the many concerns critics have raised since the decision’s release.

The decision to leave two streams dry while accommodating the maximum needs of the largest user of diverted water, HC&S, has been described by Hui members as “disturbing” and a “kick in the butt” in media reports.

Earthjustice noted in its press release that the case has parallels to the seminal Waiahole water case on O`ahu, in which the Hawai`i Supreme Court “chastised the commission’s proceedings as being tainted by external pressure at the eleventh hour. Similarly, in this case, during closing arguments…HC&S dispensed with any legal argument and instead had its manager and A&B’s chief financial officer, Chris Benjamin, deliver testimony lacking any connection to the evidence in the record and threatening the shutdown of the plantation and layoffs of all of its workers.”

Moriwake told Environment Hawai`i, “After two reads, it appears to me…that what the commission tried to do was figure out what is the lowest point of stream flow at which point the offstream users would suffer some kind of shortage. It was clear they didn’t want to go one drop beyond the point at which the offstream users would really have to start cutting back.” He also argued that the commission focused on the lowest historical flows and peak water demands, then “worked backwards from that point.”

“First of all, that’s illegal” according to the Waiahole decision, he said. “You don’t accommodate offstream users first.”

HC&S’s Benjamin also released a statement, which said that although the Na Wai `Eha decision will increase his company’s operating costs, it was a dramatic improvement over Miike’s recommendation to establish IIFS totaling 34.5 mgd for the four streams.

Benjamin added, “Many factors…will ultimately determine our long-term survival, but no single factor is more important than access to water. The combined impact of the commission’s three rulings [the Na Wai `Eha decision and two recent rulings on IIFS in East Maui] will result in substantially less water available to HC&S. We are encouraged, however, that the commission recognized the important public benefits served by offstream uses…”

Double-Talk

In juggling the countless statistics and assertions raised during hearings and the laws that apply to IIFS, the commission seems to have tripped over itself in a few areas, possibly because the decision’s final analysis and order were written by the majority, while the findings of fact and conclusions of law were written by Miike, who strongly opposed the final decision.

The commission’s treatment of HC&S’s Well No. 7, which some have argued is an ideal alternative water source, is one example. In explaining how it decided reasonable uses, the commission declared, “In balancing instream values with offstream uses, the commission will not recognize the economic impact on diverted water that is being used inefficiently, losses that could be prevented through practical actions, or waters that have practical alternatives.” However, cost seemed to play a role in the commission’s determination of the amount of water available from Well No. 7.

This well historically pumped about 19 mgd. An additional booster pump would incur costs of $1 million, and it would cost $475,000 to pump water to a field not currently able to be irrigated with the well existing configuration, the commission notes, adding that a power contract with Maui’s utility limits the company’s ability to run the pumps on a consistent and sustained basis.

Based on the fact that pumping in the Kahului aquifer, which Well No. 7 taps, already exceeds the sustainable yield (although to no apparent detrimental effect) and claims that changes in farming practices have likely reduced the aquifer’s recharge, the commission determined that the water currently available is less than the historical rate of 19 mgd.

The commission then concluded that these uncertainties “in combination with the commission’s decision to place the full burden of remedying losses immediately upon HC&S” led to its decision to limit the “practical alternative” from Well No. 7 to 9.5 mgd. (It should be noted that other wells continue to pump the aquifer. According to Thielen, that’s because irrigation water appears to be artificially recharging it.)

“This alternative will not require capital costs, only the costs of pumping,” the decision states.

How the commission arrived at 9.5 mgd and how or whether the “burden of remedying losses” and other costs figured into determining that amount is not discussed.

Another example is the approach taken in determining the IIFS. In its discussion of the IIFS proposed by the parties to the case — the Hui/MTF, Maui County, WWC, the Office of Hawaiian Affairs, and HC&S — the commission discarded the county’s and the Hui’s recommendations.

The county had proposed setting aside 3.2 mgd to meet current municipal needs, reserving an allocation of 9 mgd for future needs (the proposed Wai`ale Treatment Facility), and 6.1 mgd to meet irrigation needs for HC&S fields that cannot be irrigated by Well No. 7. All remaining water diverted by WWC would be returned to the streams.

In addition to its proposed IIFS below the diversions of each stream, the Hui had recommended that the commission reserve water at the mouths of each stream — ranging from 0.07 mgd to 2.5 mgd — for kuleana users, traditional and customary users, and the Maui Coastal Land Trust.

These requests to reserve water for offstream uses and leave the excess in the stream are contrary to the tenets contained in the Waiahole Supreme Court decisions, the commission stated. Yet the commission itself seems to have adopted that very approach with regard to HC&S’s needs.

In its section on balancing instream values and non-instream uses, the commission evaluates how the USGS’s proposed Phase 1, 2, and 3 releases for Waihe`e River and Waiehu Stream would provide for HC&S’s median and maximum water needs.

Both the Phase 2 and 3 flows, totaling 20.5 mgd and 49.3 mgd, respectively, would require HC&S to seek alternatives for at least half of a given year. The Phase 1 flow, however, left enough water to meet both HC&S’s median and 90-percent-maximum irrigation requirements.

During peak irrigation, “[o]nly the 1st phase flow would leave enough water for offstream use, but only if all 9.5 mgd of Well No. 7’s practical alternative were used.

“Therefore, adopting the 1st phase controlled flows for the IIFS would provide the best balance between instream values and offstream uses,” the decision states.

Dissent

With regard to the commission’s determinations regarding Well No. 7, Moriwake says
that there was no evidence in the record that proved the aquifer was being overpumped or what the real capacity of Well No. 7 is, “which HC&S has the burden of providing.”

And he was not alone in his reaction to the commission’s decision. Commissioner Miike issued a highly critical dissent to the commission’s order. As a member of the commission who served during the original Waiahole ditch contested case, and who also was a hearing officer in that case and in the Na Wai `Eha case, Miike focused mainly on how the commission could have and should have complied with the state Constitution and Water Code and the Hawai`i Supreme Court’s rulings in the Waiahole case.

“By its decision, the majority has failed in its duties under the Constitution and the State Water Code as trustee of the state’s public water resources,” he concluded.

To start, Miike cited the court’s finding in the Waiahole case that, “Uncertainty regarding the exact level of protection necessary justifies neither the least protection feasible nor the absence of protection.” And as for private commercial users, he cited the court’s finding that the public trust “has never been understood to safeguard rights of exclusive use for private commercial gain,” and that a higher level of scrutiny applies to private commercial uses.

Miike pointed out that in nearly every case where there was scientific uncertainty, the commission favored presumptions that protected private, commercial offstream uses — specifically, HC&S’s — and held resource restoration to a “higher level of scrutiny.”

The commission’s decision not to restore water to `Iao Stream even though the commission determined that the stream retained some potential to maintain healthy populations of aquatic life was one of a number of examples of the commission choosing “presumptions to the detriment, and not the protection, of instream values,” he wrote.

He added that all four Na Wai `Eha were important for traditional and customary purposes and the commission had a duty to “reasonably protect native Hawaiian rights.”

He indicated the commission’s decision to reduce the pumping capacity of Well No.7 by half was perhaps its most significant misstep, stating the move was “arbitrary” and “without any credible foundation.”

And in defiance of the state Water Code’s requirement that commission weigh the importance of instream values against that of offstream uses, including the economic impact of restricting such uses, the commission decided to set the IIFS at “the amounts of water remaining after all offstream requirements were met; i.e., a residual — not a balanced — approach. Such an approach does not even rise to the level of the ‘least protection feasible,’” he wrote.

Miike offered a couple of examples of alternative IIFS — totaling 22 mgd and 29.4 — that he believed would have reflected a more reasonable restoration effort and might have had only a minor impact on HC&S.

“Absent an economic analysis by HC&S, the commission cannot assume that HC&S’s doomsday scenario [of a total plantation closure] would result from an occasional 10.5 to 13.4 percent decrease of its irrigation requirements for 15 percent of it entire operation,” he wrote, referring to the impacts his proposed 29.4 mgd IIFS would have. “Those decreases equate to only 1.6 to 2.0 percent of its irrigation requirements for its entire 35,000-acre operations, and then only on an occasional basis.”

In response to Miike’s critique, Thielen points to language in the decision that notes, among other things, that the Waiahole decision states, “Reason and necessity dictate that the public trust may have to accommodate offstream diversions inconsistent with the mandate of protection, to the unavoidable detriment of public instream uses and values.”

She said Miike did a disservice to the process by inadequately addressing Wailuku Water Company’s role in Na Wai `Eha water use (i.e. golf course irrigation), and Maui County’s water management practices.

“[The hearing] focused too much on one diverter and not on broader issues,” she said. The issue of whether WWC should continue to be the water purveyor in that area should have been a “huge focus” of the hearing.

She added that decisions like these are meant to be decided by a group of people, not just one person, because it is more likely to arrive at “the most reasoned decision.”

“Commissioner Miike, at the end of the day, he disrespected the rest of the commission in unfairly and wrongly characterizing the deliberations,” she said.

Benjamin’s response to those who say the commission took a backwards approach: “To its credit, the commission’s process was thorough, evidence-based, carefully considered the law and court rulings.  All in all, a very deliberative process to meet competing needs for an increasingly scarce resource.”

Next Steps

Earthjustice has stated that it plans to appeal the commission’s decision in court. In the meantime, it has already filed a lawsuit regarding the county’s acceptance of an environmental impact statement for its proposed Wai`ale Treatment Plant.

The commission plans to proceed with issuing water use permits for Na Wai `Eha, where parties will likely have to “go through this all over again” with respect to justifying their uses and proving that they are reasonable and beneficial, Moriwake said.

In Moriwake’s view, the Water Use Permit Application (WUPA) process gives some of the parties a “second bite at the apple” to supplement deficiencies in the contested case hearing record. He added that he thought it was unwise for the commission to issue any water use permits anytime soon, since they could be overturned if the IIFS decision is thrown out by a court.

Thielen added that there is no guarantee every party is going to get water, and said the issue of WWC’s role as water purveyor will definitely be addressed in the permitting process.

For Further Reading

Environment Hawai`i has published several articles that will provide additional background to the dispute over West Maui surface water:

  • “Commission Struggles with Conflicting Claims Surrounding West Maui Stream Diversions,” February 2006;
  • “Commission Orders Contested Case Mediation for Maui Water Disputes,” March 2006;
  • “Finally, a Schedule for Contested Case Over Charge of Wasting Maui Stream Water,” January 2007;
  • “Hearings Begin in Contested Case over Diversion of West Maui Streams,” “USGS Seeks Temporary Releases For Study of Instream Values,” and “Wailuku Water Co. Sells Ditch Water Without Consent of Utilities Commission,” December 2007;
  • “Commission Tightens Grip on Waters of Central Maui,” May 2008;
  • “Wailuku Companies Seek PUC Approval to Serve Existing, Future Water Users,” November 2008;
  • “Hearing Officer Issues Recommendations for Na Wai `Eha Contested Case Hearing,” June 2009;
  • “Parties Conclude Debate over Impacts of Stream Restoration in Central Maui,” November 2009.

 

— Teresa Dawson

 

Volume 21, Number 1 July 2010

 

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