Appellants in the Na Wai `Eha case have a laundry list of gripes about the Commission on Water Resource Management’s June 2010 vote setting interim instream flow standards (IIFS) for four West Maui streams.
To start, the commission erroneously used flow levels proposed by the U.S. Geological Survey for a habitat study as a basis for its decision to restore 12.5 million gallons of water a day to Waiehu Stream and Wailuku River and nothing to `Iao and Waikapu streams, they argue.
Although the USGS had proposed additional flows to `Iao and suggested that flows could be restored to Waikapu in a future study, CWRM cited `Iao’s 20-foot concrete drop and the remote likelihood that Waikapu ever reached the sea as reasons why restoration would do little, if anything, to improve habitat for amphidromous stream organisms such as native gobies and limpets.
During oral arguments on June 6 before the Hawai`i Supreme Court, attorneys representing Hui O Na Wai `Eha, the Maui Tomorrow Foundation, and the Office of Hawaiian Affairs detailed the areas in which the commission faltered.
Attorneys representing CWRM and Hawaiian Commercial & Sugar (HC&S), meanwhile, argued why they believe the commission’s decision should stand.
One of the commission’s most egregious errors in the appellants’ eyes is its drastic underestimation of the amount of water available from HC&S’s most practicable alternative to Na Wai `Eha water, Well No. 7. HC&S historically pumped 21 mgd from the well. The Water Commission, in its balancing of instream and offstream uses, decided that HC&S could reasonably take no more than 9.5 mgd from Well 7.
The commission did not explain in detail how it arrived at 9.5 mgd, but did cite uncertainty about the capacity of the well and impacts of overpumping of the aquifer.
“This is the most productive well in the state. … If this is not a practicable alternative, I don’t know what is. HC&S has always used this source,” said Earthjustice attorney Isaac Moriwake, who represents the Hui and Maui Tomorrow Foundation.
“You don’t think there would be a problem with [aquifer] recharge” if more was pumped from Well 7, Justice Paula Nakayama asked.
“Not based on the record,” Moriwake said. “HC&S has insisted it’s used all its wells without impact on quality. … CWRM plucked 9.5 [mgd] out of the sky.”
Former water commissioner Lawrence Miike, who was the contested case hearing officer and had opposed the commission’s final IIFS decision, made a similar claim in his dissent.
“Regarding pumping [only] 9.5 mgd [from Well 7], he said that decision was without any credible foundation,” Nakayama noted during her questioning of deputy attorney general Julie China, who represented CWRM.
So what was the foundation for that number?
China deferred to HC&S attorney David Schulmeister, but did say the decision was based on aquifer recharge concerns. She also noted that the electricity cost to pump the well was significant.
When it came time to question Schulmeister, Justice Simeon Acoba first asked him if he agreed that the Hawai`i Supreme Court’s 2000 ruling in the Waiahole Ditch case found that offstream commercial uses are subject to a higher level of scrutiny.
With regard to the various justifications HC&S and the state had presented for minimizing the use of Well 7, Acoba asked, “You didn’t produce the records that would have established in fact an increase in salinity? Is that true? If it is, did the commission ignore that the records were not produced?”
Schulmeister replied that HC&S’s Rick Volner admitted during the contested case hearing that the company maintained salinity records, but they weren’t introduced as evidence.
Acoba noted that another of the commission’s justifications for minimizing the use of Well 7 was that HC&S was simply using it less.
“The opposing party [the Hui and Maui Tomorrow] showed it was because it was more profitable because of rising oil prices,” Acoba said.
“There’s no question HC&S is at a break-even point,” Schulmeister said.
Acoba pressed the issue: “Well 7 could have pumped out more but it was pumped less to raise profits for the company? What did the commission do with those facts in applying a higher level of scrutiny?”
The commission required HC&S to remedy a seepage loss of 6 to 8 mgd, and “definitely put a microscope on true irrigation requirements and reduced them considerably,” Schulmeister replied.
The way he reads the commission’s decision, it reduced the amount of water allowed from Well 7 because addressing system losses was going to be costly, Schulmeister said. He also said he believed the commission meant 9.5 mgd to be a floor, not a ceiling on what could be pumped from Well 7.
He stressed to the court that it needed to focus on water availability during low flows, rather than average flows. If IIFS are rooted too much in average flows, they could leave little to no water for offstream uses during low flow periods.
Moriwake, who insisted that 9.5 mgd was a ceiling, pointed out that HC&S will almost never have to use that much water from Well 7 because Na Wai `Eha will meet all of its water needs under the commission’s IIFS, 90 percent of the time.
When asked to respond to Schulmeister’s warning about the use of averages leaving no water available at times, Moriwake said that was an argument HC&S had repeated throughout this case. The problem is, it places the burden of low flows on instream uses, he said.
Finally, with regard to HC&S’s burden to remedy system losses, Moriwake pointed out that the commission didn’t state in its decision that there was a direct tradeoff between the cost of pumping Well 7 and the cost of system repairs.
He added that HC&S didn’t even provide the commission with the cost of such repairs.
T&C, Appurtenant Rights
The Water Commission’s decision failed to protect appurtenant rights or even consider customary and appurtenant rights. And by failing to restore any water to `Iao and Waikapu, the commission denied appurtenant rights, attorney Pamela Bunn, representing the Office of Hawaiian Affairs, argued.
“Downstream user rights were completely cut off” in those streams, she said. “Nothing has to remain in the stream below the diversion for downstream users.”
The commission should have accommodated kuleana users who take water from the stream in its IIFS calculations, she said.
She added that although the commission recognized that traditional and customary rights existed and that those rights were impaired in Na Wai `Eha, the decision’s two to three pages describing how the commission balanced the various uses include nothing about traditional rights or the public trust.
“It appears to be a black box balancing,” she said.
When asked by Chief Justice Mark Recktenwald to respond to Bunn’s argument that CWRM failed to expressly consider traditional and customary water uses, China assured him that the commission had considered the court’s Ka Pa`akai decision. (The court’s September 2000 decision in Ka Pa`akai O Ka `Aina v. Land Use Commission found that state agencies needed to investigate and identify traditional and customary practices impacted by an action, and take steps to mitigate those impacts.)
“Where are the findings of the intent to mitigate that impact?” Recktenwald asked.
China said simply that the commission, in prioritizing its resources, chose to restore the streams that would benefit stream fauna the most with mauka-to-makai flow.
“Waikapu never flowed mauka-makai. `Iao stream, from 2.5 miles up, was concrete and it’s got a 20 foot-drop,” she said.
Recktenwald pointed out that that concern went to wildlife habitat suitability, rather than use by Hawaiians.
“Native Hawaiian practices also include gathering of wildlife,” China replied.
And what about taro production, Recktenwald asked.
That was done mostly with offstream water, she said.
Revisiting the decision not to restore Waikapu Stream, Acoba noted that all parties to the contested case had agreed to allow water to flow to determine impacts on Waikapu, but the commission decided not to.
“There was testimony that said you should test. … When you do that, some kuleana water users would be losing water. There was competing testimony whether it ever flowed mauka-makai,” China said.
“That’s the reason for the test,” Acoba said.
By the close of oral arguments, Acoba, at least, did not seem convinced that the commission had followed the court’s directives in its Waiahole Ditch decision with regard to holding diverters of water for commercial use to a higher standard.
“I didn’t see the commission say, ‘Start with the presumption that water is to be used for public enjoyment [and that] private diversions are subject to higher scrutiny.’ I saw a recitation of Waiahole but no application” regarding higher scrutiny of private users, Wailuku Water Company and HC&S, he said.
“There was a higher level of scrutiny,” China said. “When the permits are issued, the commission will look at commercial users with a higher level of scrutiny….
“You have their word for it?” Acoba asked.
“It is in their decision of what the IIFS should be,” she said.
— Teresa Dawson
Volume 23, Number 1 July 2012