“Our clients have been eminently patient… Our patience is wearing thin,” Earthjustice attorney Kapua Sproat told members of the state Commission on Water Resource Management at their January 11 meeting in Honolulu.
It’s been 19 months since Sproat’s clients – Hui O Na Wai `Eha and Maui Tomorrow – filed a petition with the Water Commission to amend the interim instream flow standards for Waikapu, Waihe`e, North and South Waiehu, and `Iao streams, known collectively as Na Wai `Eha.
It’s been 15 months since they filed a complaint with the commission that Wailuku Water Company (formerly Wailuku Agribusiness Corp.), together with Alexander & Baldwin subsidiary Hawaiian Commercial & Sugar, are not using all of the 65 million gallons of water a day they divert from those streams and are dumping the excess. In their complaint, Hui o Na Wai `Eha and Maui Tomorrow call on the commission to end at once the waste of water.
A January presentation by Water Commission staff suggests that the commission is a long way from resolving these issues. That, says Sproat, is a big problem because in the year after she filed the petition to amend stream flows, Wailuku Water Company tripled its water revenues (which took them from operating in the red to the black). That, she said, means that the company has been selling more and more of the water it diverts rather than using it or returning it to its streams of origin.
The longer the Water Commission takes to decide on the petition and the waste complaint, the longer WWC has to lock up “excess” water by entering into contracts with other users, Sproat said. That then could reduce opportunities to revive instream uses and riparian and kuleana taro farming.
At the meeting, Sproat’s arguments were buoyed by Maui Mayor Alan Arakawa, who last year promised to seek to restore the mauka-makai flows in those four streams in exchange for Earthjustice and the Office of Hawaiian Affairs’ decision to rescind their objections to the county’s applications to the commission for permits to use groundwater from the `Iao aquifer.
Arakawa told the commissioners that he plans to introduce budget items to the County Council to ensure the restoration of stream flow, including the possible condemnation of watershed lands owned by WWC. Arakawa added that these are interim actions only, and should not interfere with the Earthjustice petition pending before the Water Commission.
He also informed the commissioners that Wailuku Water Company, which was once an agricultural company that grew sugarcane, pineapple, coffee, and other crops, has sold the vast majority of its land in Wailuku and is not using all of its water. Developments approved for those lands will include “thousands of thousands of housing units,” he said, and the rapid change in use from agriculture to development must be better regulated.
To support his claim that WWC wasn’t using all of its water, Arakawa read to the Water Commission a June 9, 2003, memo from then-Wailuku Agribusiness to Maui County Council member Wayne Nishiki, which stated that the company diverted 63.24 million gallons of water a day, 17.25 mgd of which were “unallocated flow” available to the Department of Water Supply, and 12.99 mgd were “future reserves” for Wailuku Ag.
(Sproat added that a 2005 letter from Wailuku Water Company to its shareholders states that the company has 13 customers who use 9.5 mgd and that 27.5 mgd would be available to new customers.)
Such apparent waste, when the diverted streams have little or no water, is unconscionable, Arakawa argued.
“When we walked `Iao diversion, it was dry. Others were dry or had very little water. So where is all that water going? That’s the question I ask you…. Who owns all this land now? Farmers come to my office to complain they’re not getting enough of the water they’re supposed to be getting…. We can’t just close our eyes and pretend everything is the same,” he said.
Already, Arakawa has partnered with OHA, Earthjustice and the U.S. Geological Survey to conduct stream studies to address the IIFS petition and encouraged the commission to take part. The first year of these studies has been funded, Sproat says.
If it becomes necessary, Arakawa said, the county will support the commission’s designation of the area as a surface water management area, which would then require any stream diversion to be permitted by the Water Commission.
Water Commissioner Lawrence Miike sympathized with Sproat’s and Arakawa’s concerns about the long years it can take to get the “perfect data” to make decisions on stream flow. This case involves three times the amount of water diverted by O`ahu’s controversial Waiahole Ditch, a case in which permanent stream flows have still not been determined. Miike then said that the Water Commission could set a permanent instream flow standards for Na Wai `Eha and other streams without that data, a suggestion that Arakawa supported.
Maui Water Commissioner and Alexander & Baldwin vice president Meredith Ching agreed that there was a clear urgency to resolve the matter, but asked why offstream use studies weren’t being conducted to balance the effort on instream uses. She then advised commission staff to get the best available data on economic uses of the water.
(Because her employer, Alexander & Baldwin, is the parent company of HC&S, Ching had previously recused herself from acting on both the petition and the complaint, but has said she would remain present on non-action items regarding the cases. Her questions and comments at the January commission meeting, which seemed to favor continued diversion, concerned Sproat, who wrote commission chair Peter Young and CWRM deputy Dean Nakano the following day complaining about Ching’s apparent impropriety. Sproat asked that Ching physically excuse herself from all items relating to the two cases in the future. Nakano told Environment Hawai`i last month that chair Young is evaluating the matter.)
While Arakawa noted that some of the development projects in Wailuku are worth a half billion dollars, he warned that the county may not be able to serve all of them.
“We have not managed our water wisely,” he said, but added that the municipal system is still better than private water systems, which are often substandard and have in the past required emergency assistance from the county.
Avery Chumbley, president of Wailuku Water Company, bristled at Arakawa’s suggestions that his company was wasting water. WWC takes management of water very seriously, he said, adding that it’s existed for 147 years and is committed to following the state Water Code.
Chumbley complained that the Earthjustice petitions “muddied the process” of setting instream flow standards, and asked that the commission set it and the waste complaint aside.
“WWC has managed the system for more than 100 years. We have attempted to give the commission information regarding the selling of lands and where the water is used,” he said. He also complained that a recent OHA newsletter erroneously stated that WWC is only using half of the water it diverts.
“It is using 100 percent,” Chumbley said, although he admitted that the uses have changed over the years. Still, he argued that all of the diversions were reasonable. “There is simply no wasting of water,” he said.
With regard to the “unallocated flow” issue raised by Arakawa, Chumbley clarified, “That’s if none of the water was ever used by other owners for any other purpose.”
Chumbley also pointed out that the Maui Department of Water Supply is itself receiving about 4.4 mgd of surface water through the `Iao-Waikapu Ditch and `Iao tunnel. About 47 million gallons a day goes to 6,000 acres of sugarcane, he added, and about 5 mgd go to kuleana users.
“If the mayor is serious about restoring streams, let’s put 4.4 million back. Let’s put kuleana flows back,” he said.
He added that the diversions do not take all of the water out of the streams and that the USGS has noted a general decline in stream flows everywhere.
“The system is capable of only taking a certain amount of water. What is not being utilized is returned downstream. `Iao is not totally dewatered,” although there is an area where it is dry, he said.
In her testimony before the commission, Earthjustice’s Sproat attacked Chumbley’s claims, stating that photos taken at Pohakea Bridge in West Maui by Hui O Na Wai `Eha president John Duey show that dumping is still going on. She contended that WWC began playing a shell game after Earthjustice first submitted evidence of dumping to the Water Commission (which Chumbley vehemently disputes), redirecting its excess water from its reservoirs 6 and 9 to reservoir 37.
In any case, Sproat urged the commission to do its job and do it quickly. “We see what’s happening with [water use] over time and there needs to be an accounting for it…. It’s not Mr. Duey’s job to drive to Pohakea and take pictures.”
OHA lead advocate Jonathan Scheuer added that Chumbley’s claim that `Iao is not totally dewatered is somewhat misleading.
“If you start below the diversion…those streams area dry, not for short distances, but for hundreds of yards,” he said. The stream flow is so low at points that organisms traveling the watercourse “come to a little hot pool and cook,” he said. To help the hihiwai and `o`opu in their journey upstream, Scheuer said, Department of Land and Natural Resources aquatic biologist Skippy Hau and a local Hawaiian family have been transporting stranded animals across the dry parts of the stream in buckets.
Scheuer said, “It’s nice that Wailuku Ag has been around for 147 years. Hawaiians have been around a lot longer trying to care for these systems….You inherit a lot of problems at DLNR [which administers CWRM] that were years in the making. This petition was filed 19 months ago and we would like to see you act.”
Water Commission deputy Dean Nakano, explaining why it is taking so long his staff to bring recommendations to the commission, said “we make every effort to move forward, legally and expeditiously,” but have faced a number of obstacles, “including a number of changing deputies along the way.” (The Water Commission has had three different deputies, including Nakano, over the past three years.)
In its presentation to the commission on the status of the IIFS amendment petition, CWRM staff stated it is evaluating available stream data; identifying additional research requirements on biota, ditch systems, etc.; and identifying kuleana systems, monitoring requirements, and economic impacts of adjusting stream flows.
The waste complaint is also still under review, says Nakano, who has been trying to negotiate a settlement among the parties. At the January meeting, “you got the extremes” so far as waste claims went, he says. But despite doing field visits last year, having end use data from WWC, as well as documents where WWC is offering excess water for sale, Nakano says his staff has found it all to be inconclusive.
“We want more data, to monitor the streams more closely… more stream-side information, biological surveys, more information on stream channels and lining,” he says.
So far, HC&S and WWC have agreed to work on a monitoring plan for the entire ditch system, including those serving kuleanas. Still, he worries that one of the parties in this case will decide it would rather resolve the matter through a contested case hearing and “let the facts fall as they
“It’s no slam dunk,” he says, adding that Mayor Arakawas agreement with Earthjustice and OHA will also affect the IIFS petition, the waste complaint, and pending Water User Permit applications for the `Iao aquifer. Hearings on Maui this month on water use permit applications for high-level groundwater in `Iao are also ripe for a contested case hearing request because the dike-impounded water there is linked to stream flow.
To resolve any contested case hearing on permit applications for high level groundwater, Nakano says the Water Commission would also need to deal with the petition, the waste complaint and other issues at the same time.
— Teresa Dawson
Volume 16, Number 8 February 2006