The state Commission on Water Resource Management has asked Hawai`i County to front-load its assessment of the impacts that future water withdrawals in Waimea and Keauhou will have on native Hawaiian traditional and customary rights and on the environment. In doing so, it may, as Native Hawaiian Legal Corporation attorney Alan Murakami put it, save people “a lot of time, energy and heartache.”
At its February 18 meeting, the Water Commission heard recommendations from its staff on the scope and phasing of work to be done by the Hawai`i County Department of Water Supply in revising its Water Use and Development Plan (WUDP) for the areas of Waimea and Keauhou. The commission ordered the revision last December as part of its response to a petition submitted by the National Park Service to designate the Keauhou aquifer system as a Water Management Area.
The commission’s December order required a draft revision to be completed by May 15. However, after meeting with the county and its consultants, Water Commission staff determined that deadline was not realistic. Instead, staff recommended that the update proceed in two phases, with the county presenting the results of the first phase by May 30.
In that first phase, as recommended by staff, the county is to update the plan’s projections of demand and authorized use, while in the second phase, it is to address strategies for developing water sources and improving infrastructure. In the second phase as well, the county is to outline strategies to meet agricultural and other non-potable demands, assess potential impacts of source development on environmental resources and traditional and customary native Hawaiian practices, and identify appropriate mitigation measures.
But during discussion on the staff proposal, commissioner Denise Antolini suggested including the assessment of traditional customary rights and ecological impacts in the first phase, given their importance to the commission and the length of time required to do it.
John Nishimura of Fukunaga & Associates, the county’s consultant, seemed reticent about jumping straight into an assessment of cultural and environmental impacts. He said those things also need to be addressed in the statewide Hawai`i Water Quality Plan and Water Resource Protection Plan – both elements of the overall Hawai`i Water Plan that are prepared by state agencies – as well as the county-prepared WUDP. To properly assess the cultural and environmental impacts of source development, he suggested, all of those plans need to assess the interconnection between surface and ground water and their connection to marine environments.
Antolini said that environmental assessments and impact statements are a treasure trove of information that could help with the assessment absent updates to all of the sub-plans that make up the Hawai`i Water Plan.
Commissioner Kamana Beamer added that the assessment is “not sort of like a side dish. It’s constitutionally mandated.”
The NHLC’s Murakami said he was encouraged by the commissioners’suggestions. For decades, the NHLC has been fighting on behalf of native Hawaiians for the return of diverted stream water and limits on groundwater pumping so that they can properly exercise their traditional and customary rights.
“I come from a place in history when a lot of these things were either ignored or neglected,”he said. “The comments about front-loading really hit home for me. …If you don’t front-load it, it becomes difficult when you try to talk about developing sources.”He added that the Hawai`i Supreme Court’s decision in the Ka Pa`akai case requires state and county agencies to assess and mitigate cultural impacts before decision making.
Doing the cultural impact assessments early on “can avoid really intense conflicts that are unnecessary. If you can incorporate that into this process, I really encourage it,”he said, adding that his office would be happy to assist.
After conferring with the county during a brief recess, commission staffer Lenore Ohye suggested amending her recommendation so as to require the county to begin assessing cultural and environmental issues using available published information, with a report back to the commission of its preliminary findings by May 30.
The commission unanimously approved the amended recommendation.
Early Findings On Claims
Of Kaua`i Water Waste
The Water Commission has enough information to start finding a way to end the waste of diverted stream water in West Kaua`i, Earthjustice attorney David Henkin said at the commission’s February meeting.
It’s been more than a year since Earthjustice, on behalf of Po`ai Wai Ola and the West Kaua`i Watershed Alliance, filed a waste complaint over the state Agribusiness Development Corporation’s use of water diverted from the headwaters of the Waimea River along with a petition to amend the interim instream flow standards for the river and its tributaries.
At the commission’s meeting, Element Environmental’s Steve Spengler, a consultant the commission hired to investigate the complaint, presented the results of his wet-season baseline measurements of the Koke`e and Kekaha irrigation ditches that serve the ADC’s lands in Kekaha, as well as the streams that are part of the petition.
Spengler found some leakage from both ditches. He also said that the vast majority of the water diverted from Waiakoali, Kawakoi, Kauaikinana and Koke`e streams into the Koke`e ditch is dumped into Koke`e Stream. Historically, the ditch sent water into the state’s Pu`u Lua reservoir. But after the state Department of Land and Natural Resources found the reservoir to be non-compliant with state standards, the height of water in the reservoir has been limited to 60 feet for safety reasons.
Under normal conditions, flows in Koke`e Stream are tiny, Spengler said, but because it is now receiving 80 percent of the ditch’s water, the stream now produces a consistent waterfall that otherwise would be dry.
Koke`e ditch water that used to lead to the state Department of Hawaiian Home Lands’Kitano reservoir is also diverted elsewhere. “Kitano was repeatedly vandalized. …They no longer divert there; it’s a dry hole right now,”he said.
Instead, the water is discharged into a pipe that leads to fallow sugarcane fields and intersects with the Kekaha ditch system, he said.
The Kekaha ditch system, meanwhile, serves some taro patches before its waters are fed into a hydropower plant or are dumped into reservoirs linked to Kaua`i County’s wastewater treatment plant, he said.
Below the first hydropower plant, the ditch provides about 4 million gallons of water a day to a second hydro plant, then the system deteriorates, Spengler said, showing a picture of a big belt of green vegetation fed by leakage from the ditch.
Finally, toward the end of the system, the Kekaha ditch feeds the Mana and Polihale reservoirs. From the Polihale reservoir, a pipe distributes water to smaller irrigation ditches.
In general, Spengler said, flow in the Kekaha ditch is controlled to optimize electricity production by the hydros.
“A significant amount of ditch flow is diverted back into Waimea River just below the mauka hydro,”he said.
Spengler said he and his team still have to measure flows during the dry season and a final report should completed some time later in the year.
To Henkin of Earthjustice, the information Spengler had gathered on what the ADC, through the Kekaha Agriculture Association, does with the diverted waters should have been sufficient to allow the Water Commission to take action on the waste complaint at the least.
“We have an entire plantation system that disappeared in 2001 and all the water continues to be diverted. Regarding Koke`e, three streams are being dewatered at the source. The fact that they take 10 mgd and put it in Koke`e Stream does nothing for the headwater streams that are completely dewatered,”he said.
His clients have been been waiting for the conclusion of Spengler’s investigation for more than a year, and the community is concerned that it may take until the end of 2015 to address the waste allegation, he said.
“I don’t think anyone is claiming any use is being made of the headwaters of the Koke`e system. They can’t. The reservoir can’t be more than 60 feet,”he said.
Henkin asked the commission to set a schedule to immediately address what he saw as the waste of water.
With regard to the Kekaha ditch, the system appears to be operated and maximized for power production, not agricultural use, he continued. “It’s now being used for power production that may not be technically waste. That gets to our …petition on the IIFS [and] what should be in stream,”he said.
The hydro plants provide power to pumps that protect the Mana plain and Kekaha town from flooding, he said, and keeping those pumps running is “obviously something we care about.”But maybe there are ways to power the pumps other than by dewatering an entire system, he added.
Finally, Henkin stressed the need for the commission to obtain information on the types of crops being grown on ADC lands and how many acres are being farmed.
“You can’t do an investigation about waste and beneficial use until you know what people are growing,”he said. Referring to Spengler’s photo of the leakage-induced belt of green along the Kekaha system, “I was struck about how little green there was everywhere else,”Henkin said.
Attorney Doug Codiga, representing the Kekaha Agriculture Association, responded to Henkin’s characterization of the system by saying simply that there is a “different and opposing view”on most if not all of the issues Henkin raised. The KAA is a cooperative of ADC tenants that maintains and manages the irrigation system for the agency.
— Teresa Dawson