In the year 2018, Hawai`i’s water sources will meet only 57 percent of state project demands, according to a draft plan recently presented to the Water Commission. The most desperate island by 2018 will be Maui, where projects will be lacking 13.95 million gallons of water a day.
A draft version of the State Water Projects Plan (SWPP), unveiled at the Water Commission’s October 26 meeting, predicts water supplies throughout the islands will fall 33 mgd short of meeting 2018’s project demands of 77 mgd. The shortfall casts a cloud on the future of Hawai`i’s agriculture industry, since many of the state projects involve developing water for farm lots.
The SWPP predicts that water demands for statewide projects will increase more than five-fold, from 13.629 million gallons a day for 2001 to 76.544 mgd by the year 2018. The bulk of this growth comes between 2003 and 2008, when demand is predicted to rise from 23.362 mgd to 62.297 mgd, mainly because of many-fold increases in need of the Department of Agriculture, the Department of Hawaiian Homelands, and the Department of Land and Natural Resources. Most of the increases come from the Big Island, again, between 2003 and 2008, when water demand will increase from 5.670 mgd to 25.787 mgd.
Department of Land and Natural Resources planner Dean Nakano, told the Water Commission that the jump in demand between 2003 and 2008 results from DOA plans “coming on-line.”
While the Big Island’s water use will increase the most over the next 18 years, most of the projects there will be using non-potable water for agricultural purposes. State projects on Maui and O`ahu, on the other hand, are chipping away at their drinking water supply. This year, Maui uses 690,000 gallons a day of drinkable water for purposes other than drinking, far more than any of the other islands. By 2003, O`ahu’s may surpass Maui’s demand by 300,000 gallons a day more of potable water for uses needing only non-potable water.
Still, things could be worse. An argument made at the Water Commission’s October meeting by community activist Jim Anthony, suggests that the projected water deficiency is an understatement when the Hawai`i Supreme Court’s ruling on the Waiahole Ditch contested case is figured into the equation. The court’s ruling, which basically says that some amount water needs to be kept in streams for nature’s benefit, was not mentioned in the draft State Water Project Plan (SWPP) presented to the Water Commission at its October 26 meeting by DLNR staff.
(The SWPP is the first of several major sub-plans due for revision under the Hawai`i Water Plan, which was adopted in 1990. The Hawai`i Water Plan guides water resource management in the state, and consists of a Water Resources Protection Plan, a Water Quality Plan, a State Water Projects Plan, and Agricultural Water use and Development Plan, and four County Water Use and Development Plans. All components must be regularly reviewed and updated.)
For two years the DLNR Land Division’s Engineering Branch surveyed state departments about future water use, compiled existing information on water resources, and calculated future water demands and supplies. A mere month before the branch presented its conclusions to the Commission, the Hawai`i Supreme Court unleashed its decision on the Waiahole case. As a result, any indication of how the Waiahole judgment would affect the state water projections is absent from the SWPP.
Acknowledging the coming water shortage, the SWPP states that the use of non-potable water sources should be aggressively promoted and pursued. However, no conservation strategy exists yet. Nakano told the Water Commission that while the plan includes a section highlighting conservation options that agencies can use, “We have no mandate in place we can enforce to say you shall [conserve water], but we would like to work in that direction to kind of come up with a state water conservation plan.” To do that, the state would need “baseline information of what you’re currently using so you can sort of target how much you reduce. That would be a first step,” he added.
Also crucial to the equation is an accurate inventory of useable water, Anthony told the Water Commission. He complained that the staff report to the commisson, if not the plan itself, should have contained some reference to the Waiahole decision, which could affect the amount of water available for state projects.
“It’s not only supply and demand conservation of water,” Anthony said. “There are certain things that are mandated in the Waiahole decision. They derive from the public trust doctrine and related issues: the protection of streams, ecosystems, watersheds…,” he said.
The SWPP includes a “water development strategy options to meet the forecasted demands,” Anthony continued. “I underscore the words ‘development strategy options to meet the forecasted demands.’ It’s not only demands for human use that we need to be talking about here. We should be talking consistent with the court’s decision, issues that are related to the demands of nature, the demands of streams, the demands of ecosystems, the demands of species, the demand of nearshore waters. And when we do not get that, we deal with this issue in a kind of verbal shorthand that makes your goals obscure and then we’re going to get into a fight over this and end up in litigation and I don’t think we need to have that happen if you take prudent and productive steps to make sure that our thinking is clarified,” Anthony said.
Water Commission Chairperson Tim Johns agreed.
While the SWPP is a narrow part of the Hawai`i Water Plan, Johns said, “I do agree that if you’re going to be talking about sources, potential sources, that that discussion needs to be included.” Admittedly unsure of how that discussion should be integrated into the plan, Johns still felt that it should be taken to the public for comment.
Nakano responded that the Waiahole implications could be fleshed out when the plan is presented to the public. In regards to the Waiahole case, Nakano said concerns about water sources will be addressed in the Water Resource Management Plan, another sub-plan under the Hawai`i Water Plan. Many of the state water projects will be relying on groundwater and drilling of new wells. Only if the state considers taking surface water (water from streams) would the Waiahole decision really affect the water inventory for state projects, Nakano told Environment Hawai`i.
Still, at the Water Commission meeting Johns told Nakano, “I think that the perception of the mission not embracing the Waiahole decision is also something we should be concerned aboutÉ We don’t want to create the false impression that we are ignoring [the Waiahole decision] in one of the first major documents that comes out of the commission after the decision.”
He asked that staff incorporate some kind of reference to the Waiahole decision when the plan is presented to the public for comment.
Nakano says that, at the earliest, public hearings would be held in late February or early March. Copies of the plan are expensive ($35), so he is working on getting the plan put on an inexpensive CD-rom and on the Water Commission’s website.
Once More, Waipi`o Falls Restoration Is Delayed
The storied twin falls of Waipi`o Valley – Hi`ilawe and Hakalaoa – have been reduced to one cascade since 1989, when the Hamakua Sugar Company diverted the stream that fed Hakalaoa in order to protect a flume it built midway down the valley wall. More than a decade later, the diversion is still in place and the state Commission on Water Resource Management has voted once more to postpone its removal – which is now to occur by December 31, 2001.
The most recent deferral of the deadline was approved when the commission met in Honoka`a, Hawai`i, on August 23. The state Department of Agriculture, which is the lead agency for the restoration, requested the deferral on July 21. By that time, it had lost any hope of starting, much less completing, the restoration by August 30, 2000, the deadline that the commission set last year when an even earlier deadline – calling for completion of work by December 1, 1999 – was not met.
Even with the deferral, the state Department of Agriculture, through its director, James Nakatani, could not promise that work would be completed on schedule. Although restoration of the falls is a simple matter, neither Nakatani nor farmers who intend to take water from the ditch desire to see the falls restored until the temporary flume is removed and has been replaced by a tunnel that the DOA plans to drill behind the cliff face to reconnect the severed water system. Their concern is that if the falls were restored while the ditch system is still dependent on the flume as a key link, boulders and cascading water from the falls could hit the flume and cause its failure.
Ever since the Water Commission received a complaint about the diversion in 1992 by Waipi`o Valley taro farmer Chris Rathbun, commissioners have bowed to the wishes of the Department of Agriculture on keeping the flume, built by the now-defunct Hamakua Sugar Company, in place until the Lower Hamakua Ditch system is repaired.
According to Nakatani, only one qualified bidder has shown interest in the part of the project critical to restoring the falls: digging a tunnel behind the cliff face. The bid deadline of August 21, 2000, slipped when that bidder, Big Island contractor James A. Glover, requested a delay.
So, “you just rolled over?” asked Tim Johns, chair of the Water Commission.
“We underestimated the complexity of tunneling,” Nakatani responded. “We could end up with no contractor if we didn’t go along.” The DOA rescheduled the bid opening to October 20.
Commission members expressed their concerns that the DOA may not yet have overcome its problems with respect to getting the ditch repairs on track. Nakatani acknowledged that there was no project manager to ensure that scheduled items were done on time. In fact, he said, although the ditch is supposed to pay for itself through fees assessed on water users, “people are used to taking water without authorization.” The DOA hopes to have the system become self-sufficient in three years, he said, but whether it can do that will depend on legislative appropriations for staff, water meters, and the like, he told the commissioners.
(Nakatani did not dwell on the failure of his department to force users to pay. An item by the DOA in the September Hamakua Times gives a better idea of the scope of this problem. As of August 25, the DOA stated, only 26 of 105 lessees on state land served by the ditch had responded to a questionnaire on use of ditch water. Four were paying for the water, while 22 claimed they used no water. The remaining 74 apparently are using water without paying. Monthly maintenance costs for the ditch were $19,000, and these must by law be borne by the system users, the DOA said: “If we do not receive sufficient revenues to cover the monthly expenses, ditch maintenance will be cancelled, and without maintenance, the ditch will stop flowing.”)
In testimony before the commission, Rathbun, who filed the original complaint about the Hakalaoa Falls diversion, accused commissioners of “an unconscionable series of delays. Deadlines were allowed to slide, and now 16 more months are being requested for work that was originally only supposed to take eight. “Milestones set in 1997 still haven’t been met,” Rathbun noted.
Commissioner Bruce Anderson, director of the state Department of Health, objected to the recommendation of the staff that the DOA be fined should it not meet the now-extended deadline for restoration of the falls. “There’s no utility in fining a state agency,” Anderson said. “We should eliminate fines as an option.”
Sunshine Law Violations
In April 1997, the Water Commission conducted a site visit to Waipi`o Valley and parts of the Hamakua Coast served by the Lower Hamakua Ditch. The meeting fell under the state Sunshine Law as one where public notice should have been given, but none was. Members of the public found out about it when commission members referred to the visit at a later, public meeting. On August 23, it was deja-vu all over again. In discussion of matters on the agenda of a public meeting, commission members referred to their visit to several sites along the Hamakua Coast the previous day. As before, members of the public on the commission’s mailing list received no notice of the meeting. Linnel Nishioka, executive director for the commission, later acknowledged to Environment Hawai`i that her office erred in not providing the required notice.
Petition on Waste Is Deferred
At the August 23 meeting, the Water Commission considered a petition that it order landowner Kamehameha Schools/Bishop Estate to stop wasting water through a diversion above Hi`ilawe Falls. The diverted flow feeds into Lalakea Reservoir and from there into a series of small ponds before it enters into another small stream. The petition was brought by the Earthjustice Legal Defense Fund on behalf of farmers in Waipi`o Valley organized as the Waipi`o Valley Community Association.
The diversion of up to 2.5 million gallons a day was established around 1989 as an emergency supply of water for the now-defunct sugar mill at Haina, near Honoka`a. In 1998, KSBE told the commission that the diversion “presently provides irrigation water for taro cultivation by a KSBE lessee, and the Lalakea reservoir is being used É for an aquaculture operation.” When commission staff visited the site, they found a floating structure in the middle of the reservoir – somehow related to the aquaculture use – and three inactive taro lo`i, the staff investigation says. Water from the reservoir was observed to flow into Wai`ulili Stream.
In November 1999, commission staff paid another visit to the site. This time, they found 23 unlined earthen ponds in various stages of construction and water “gushing into the ponds.” Excess water from Lalakea Reservoir was flowing into nearby Wai`ulili Stream. “Except for a brief period in 1998, when a purported use was hastily created in an effort to justify continued diversion in response to WVCA’s complaint, stream flows diverted by the Lalakea Ditch System have not been used since 1989,” wrote Earthjustice attorney Paul Achitoff in the conclusion of the petition.
On August 23, staff reported yet another site inspection was made on August 3, 2000.
“Between the November and August investigations,” the staff report stated, “the lessee had tested a stock of 500 Chinese catfish, which failed when they died. He has been flushing the ponds since to ensure that agricultural chemicals or other contaminants have been flushed from the ponds and feels ready to stock the ponds with 50,000 fry of Chinese catfishÉ Altogether, the lessee estimates that he has invested close to $250,000 in this ‘testing phase’ of this aquaculture project. The long-term viability of this use is an issue with staffÉ Further work is necessary before staff is confident in the long-term nature of this project and accuracy of the reported water use data.”
The commission went along with the staff recommendation and ordered Bishop Estate to provide details of the long-term nature of the project and estimates of the water use required, install a metering device, and provide monthly water use reports to the commission. The estate will be assessed “maximum daily fines” if it doesn’t meet the deadline of December 1.
–P.T.
DLNR Director Can Vote on Waiahole Now
When the Hawai`i Supreme Court handed back the Commission on Water Resource Management’s decisions on the divvying up of Waiahole Ditch water, it was basically saying, “Do over. And do it right, this time.”
On October 27, the state Board of Land and Natural Resources took a step in that direction, when it voted to remove the DLNR as a party in the Waiahole Ditch contested case, thereby allowing the DLNR director to vote on the matter. The vote remedied a predicament imposed on the Water Commission by a former deputy director, when he included the DLNR as an applicant for the water. (The Waiahole Ditch case will determine how much water from Windward O`ahu streams will be diverted to the Leeward side for agriculture and other development, how much will remain in streams and how much will be given to the farmers on the island’s east side.)
While ruling on the Waiahole case is the Water Commission’s responsibility now, the Land Board’s decision eases the commission’s decision-making process somewhat. Johns, as head of the DLNR, chairs the Land Board and the Commission on Water Resources Management, which is responsible for allocating Waiahole Ditch waters.
When Windward and Leerward O`ahu parties were applying Waiahole water late in 1994, then DLNR deputy director Jack Keppler co-applied with the ditch’s operator, the Waiahole Irrigation Company (WIC). WIC sought to keep water flowing to the Leeward side. Keppler’s reason for involving the DLNR – whose job it is to protect and conserve the island’s natural resources – was to support the state’s interest in promoting diversified agriculture.
A petition asking that the DLNR be removed as an applicant was filed with the Board of Land and Natural Resources on November 27, 1995 by the Sierra Club Legal Defense Fund (now Earthjustice Legal Defense Fund) on behalf of the Waiahole-Waikane Commuinity Association, the Hakipu`u Ohana, the Kahalu`u Neighborhood Board, and Ka Lahui Hawai`i. The petition contended that the DLNR should have intervened on behalf of the windward parties instead of teaming with WIC, a Leeward party. In addition, the petition noted that the appropriate agency to promote diversified agriculture was not DLNR, but the state Department of Agriculture, which had already made its own petition to reserve Waiahole water.
Until now, Johns has recused himself from any decisions related to the Waiahole case because the DNLR was itself an applicant for the water, a “patently obvious” conflict also described in the SCLDF petition. Water Commissioner Brian Nishida, Vice president and general manager of Del Monte Fresh Produce, has also removed himself from discussion or decision-making regarding this case because of his company’s interest in the Waiahole water.
At the Water Commissions meeting on October 26, a small crowd of interested parties had gathered to hear the Commission hash out the future of Waiahole water. But the item on Waiahole was not heard that day because Maui commissioner Buddy Nobriga was absent and Johns and Nishida had recused themselves, leaving the Commission without a quorum to vote on the issue. While, the Commission could have legally received public testimony, the Commission’s deputy attorney general advised against it, since, the absent commissioner would have to review the records of testimony and discussion on his own.
The Waiahole contested case raised the question of whether the DLNR head, acting as BLNR chair of Water Commissioner, can vote on issues where the DLNR is an applicant and for the past few months, Johns, has been recusing himself from such items.
— Teresa Dawson
Volume 11, Number 6 December 2000