Na Wai `Eha Hearings Resume, East Maui Case Next in Queue

posted in: March 2014, Water | 0
The taro farmers of East Maui were first in line, but it appears they may be last to get served.
The state Commission on Water Resource Management’s contested case hearing on the interim instream flow standards of Waihe`e River and Waiehu, Waikapu, and `Iao streams (collectively known as Na Wai `Eha) begins this month. Attorneys with the Native Hawaiian Legal Corporation, which has been fighting for the restoration of East Maui streams for much longer than the parties in the Na Wai `Eha case, are wondering why they’re still waiting in the wings.

The NHLC first filed petitions to amend the interim instream flow standards of 27 East Maui streams in 2001. The organization filed the petitions on behalf of Na Moku Aupuni O Ko`olau Hui, and native Hawaiian taro farmers Beatrice Kekahuna, Marjorie Wallett, and Elizabeth Lapenia. They argued that East Maui Irrigation Co., Inc.‘s and Hawaiian Commercial and Sugar’s diversion of hundreds of millions of gallons of water a day left their clients’ taro patches without adequate water.

After tussling for years with the state Board of Land and Natural Resources over the legitimacy of the revocable permits EMI and HC&S have been granted over the years to continue diverting the water across state lands, the NHLC’s fight shifted to the Commission on Water Resource Management in 2010. By then, the commission had decided on eight of the stream petitions, amending six of the IIFS and leaving two intact. The NHLC did not oppose that decision, but in July, the commission’s decisions regarding the remaining 19 streams left far too little water in the streams in the eyes of the NHLC’s clients. In particular, they felt the decisions focused mainly on the needs of aquatic organisms and failed to take into account the needs of kuleana and holders of appurtenant rights.

Na Moku, Kekahuna and Wallett requested a contested case hearing, but were denied in October 2010. They ultimately appealed to the Intermediate Court of Appeals, which ruled in their favor in November 2012, after the Hawai`i Supreme Court found in August 2012 that constitutional due process required the commission to grant a contested case hearing to parties in the Na Wai `Eha case whose constitutional rights are affected by stream diversions there.

Several months ago, the Water Commission authorized its chair to select a hearing officer for a contested case hearing on the IIFS for the 19 East Maui streams. Although the contract is still being drafted, CWRM staff confirmed that Dr. Lawrence Miike has been selected as the hearing officer. Miike, a former member of the comission and director for the state Department of Health, is also the hearing officer for contested cases involving four West Maui streams known collectively as Na Wai `Eha. Miike was also the lone dissenter when the Water Commission decided on the 19 IIFS petitions in 2010.

Resolution for East Maui may still be some years off given the pace of proceedings so far.

“There is no firm start date for East Maui, but it will likely begin a few months after the Na Wai `Eha proceedings,” wrote CWRM’s Dean Uyeno in an email to Environment Hawai`i.

The Na Wai `Eha remanded hearing begins on March 10 at the Kahului Community Center and concludes on March 28.

When asked how the commission decided which contested case hearing – East Maui or Na Wai `Eha – it would address, Uyeno said, “basically … the order of the court decisions dictated which case would proceed first.”

In addition to the Na Wai `Eha remanded contested case hearing, the Water Commission is planning to hold a separate contested case hearing to determine the appurtenant rights of users of water from Na Wai `Eha.

Whether that hearing will be held before or after the East Maui contested case hearing has not yet been determined, Uyeno says.

“We won’t know for certain until the hearings officer contracting is complete and Na Wai `Eha is underway,” he says.

NHLC’s Alan Murakami points out, “We asked for intervention and a determination of appurtenant rights three years before the Na Wai `Eha petitioners did.”

West Kaua`i

Although the Maui cases are being handled via quasi-judicial contested case hearings, the July 2013 petition filed by Po`ai Wai Ola and the West Kaua`i Water Alliance to end waste and to amend the interim instream flow standard of Waimea River is being handled administratively.

The community groups, represented by Earthjustice, have argued that the Kekaha tenants of the state Agribusiness Development Corporation are not using all of the 50 million gallons of water a day they are diverting from Waimea River via old plantation-era irrigation ditches in Kekaha and Koke`e.

According to the commission’s Lenore Nakama, an investigator has been selected to deal with the waste complaint, but the scope of work is still being drafted. The IIFS amendment petition will be handled by staff, says Uyeno.

For Further Reading

Environment Hawai`i has given extensive coverage to East and West Maui water issues over the years. For more background, see the following abridged list of stories, all of which are available on our website:

EAST MAUI

  • “Water Commission Denies Hearing on Flow Decisions for East Maui,” November 2010.
  • “Water Commission Amends Flows For Six of 19 East Maui Streams,” July 2010;
  • “Water Commission Amends Standards for Six Diverted East Maui Streams,” and “Land Board Resumes Discussion of Diversion of East Maui Water,” November 2008;
  • “Battle Looms Over Waters Diverted from East Maui Streams” and “Complex Legal Issues Surround A&B’s Taking of East Maui Water,” August 1997.

West Maui

  • “Supreme Court Orders Water Commission to Revisit Decision on West Maui Streams,” September 2012;
  • “Supreme Court Weighs Jurisdiction In Appeal of Decision on Maui Water,” and “Supreme Court Dissects Arguments In Appeal of Maui Stream Standards,” July 2012;
  • “Commission’s Order on Na Wai `Eha Baffles Its Most Experienced Member,” “The Water Commission: An Idea Whose Time Has Passed (Editorial),” “Maui Agency Is Sued Over Plan to Have A&B Put Stream Water in Municipal System,” “Environment Hawai`i Questions Miike On Dissent in Na Wai `Eha Decision,” July 2010;
  • “Parties Conclude Debate over Impacts of Stream Restoration in Central Maui,” November 2009;
  • “Commission Struggles with Conflicting Claims Surrounding West Maui Stream Diversions,” February 2006.

 

Volume 24, Number 9 March 2014

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