Water Commission Inaction Frustrates Legal Appeal of East Maui Stream Decision

posted in: November 2011, Water | 0

Na Moku `Aupuni o Ko`olau Hui’s decade-long fight to get more water released into East Maui streams has hit a snag.

On September 15, the Hawai`i Intermediate Court of Appeals affirmed its August 31 decision to dismiss Na Moku’s appeal of the decision by the state Commission on Water Resource Management to deny the group’s request for a contested case hearing.

The court found it lacked jurisdiction because the Water Commission had not issued a formal, appealable decision on Na Moku’s request.

Last October, Na Moku, composed of native Hawaiian residents of East Maui, some of them taro farmers, sought a contested case hearing over the commission’s decision in May 2010 to amend the interim instream flow standards (IIFS) for several East Maui streams.

The Native Hawaiian Legal Corporation, on behalf of Na Moku and other native Hawaiian taro farmers in the area, had filed petitions in May 2001 to amend the IIFS for more than two dozen streams diverted by the East Maui Irrigation Company (EMI) to central Maui.

Continuous flow would not only provide water for taro, but it would also benefit native stream animals and nearshore fisheries and was, therefore, necessary to support the exercise of traditional and customary practices, the NHLC argued.

In September 2008, the commission voted to allow some 10 million gallons of water a day (mgd) to flow into the eight most important streams for taro growing in the Wailuanui-Keanae and Honopou valleys — a decision Na Moku did not contest.

On May 25, 2010, the commission decided on the remaining stream flows. 

To ensure the needs of Hawaiian Commercial & Sugar Co., Maui County, and other central Maui farmers were met, the commission decided to leave just enough water in five of the streams (East Wailuaiki, West Wailuaiki, Waiohue, Wakamoi, and Hanawi) during dry times to allow stream organisms to survive. During the wet season, roughly 9 mgd would be returned.

The commission also decided to add a small amount of water to Makapipi stream year-round and to leave untouched the IIFS for the remaining 13 streams that Na Moku sought to have restored.

Dissatisfied, Na Moku quickly petitioned for a contested case hearing. NHLC attorney Alan Murakami also asked then-CWRM chair Laura Thielen for a written explanation of the commission’s decision regarding the IIFS for the 19 streams.

“Those affected wish to see the exact ruling, aside from news reports. For example, residents in Nahiku are reporting that EMI is not complying with the IIFS for Makapipi stream,” he wrote in an email to Thielen.

The commission had not issued any formal decision regarding its September 2008 decision. But, in that case, Murakami noted, the commission adopted without amendment its staff’s recommendations, “so there is some writing on which to rely.”

But with respect to the May 2010 decision, he continued, “[s]o far, we have had to rely on news reports and our own notes to determine what standards were supposedly set.”

Rather than issue a formal decision, commission staff simply informed Murakami on August 26 that the minutes of the May meeting — including a summary table of the IIFS — had just been approved and would be posted on the commission’s website that day.

On October 18, 2010, the commission approved its staff recommendation to deny Na Moku’s contested case hearing request because, it found, one was not required by statute.

NHLC attorney Camille Kalama argued at the time that although statutes did not require the commission to grant a contested case hearing, constitutional due process did, according to a Hawai`i Supreme Court decision (Waiahole I), since the amended IIFS affects the petitioners’ rights, duties and privileges.

Na Moku appealed to the ICA in November. 

In its opening brief, the NHLC again pointed to the Waiahole I case. It also cited a Water Commission finding related to the Waiahole I case that “a petition to modify instream flows at … specific locations is a fact-intensive, individualized determination at each site that may directly affect downstream and offstream interests … [I]ndividual claims may need to be examined. The site-specific inquiry required in this case is not compatible with rule making, but with a method which provides the due process procedures necessary to assess individual interests.”

In the commission’s defense, deputy attorneys general Linda Chow and Donna Kalama noted that not all of the agency’s decisions are appealable. For example, the courts have decided that the designation of water management areas is not judicially reviewable. 

They argued that a similar standard applies to the setting of IIFS. Because the state Water Code lacks any mention of a right to an appeal of a decision to set IIFS, “[c]learly, the setting or amendment of IIFS is a matter over which the commission has exclusive jurisdiction and final authority,” they wrote.

Although the NHLC’s clients filed the petitions to amend the IIFS, the commission’s May 2010 decision did not determine how much water any particular parties were entitled to, they wrote. 

“Instead, the commission’s decision was to set the IIFS at a particular location in each stream at a specific rate. … The setting of IIFS is not part of the permitting process under the Water Code and it cannot be used to enforce substantive water rights, either of Appellants or non-instream users,” they wrote.

The commission asked that the ICA dismiss the appeal for lack of jurisdiction.

On August 31, the ICA did dismiss the appeal, but not for any of the reasons cited by the state. In its order, the court noted simply that no water commissioners had signed either the staff’s October 18, 2010, submittal recommending denial or the minutes of that meeting.

“[T]hus, neither of these two documents appears to be a final written order,” the court wrote.

Dean Uyeno of the commission’s stream branch told Environment Hawai`i that meeting minutes aren’t normally signed by the commission or its chair; they’re just approved.

In this instance, however, the court seemed to feel that because a contested case hearing denial is more of a quasi-judicial than a quasi-legislative decision, “the aggrieved party must appeal from a written order that is approved by a majority of the members … and issued by the [commission].”

To Murakami, the court’s ruling was not only unusual, it also “really puts egg on the face of the CWRM and the AG’s [attorney general’s] office, but unfortunately, at great costs to our cultural practitioner clients who must bear the burden of this lost time and energy.”

“Is this the level of diligence one can expect from such an important agency?” he asked.

The NHLC is seeking clarification from commission staff about whether it plans to issue a final order. Although he said he believes the ICA already has the authority to decide on the appeal, Murakami still wants the commission to issue formal decisions on both the IIFS petitions and the contested case denial.

“It would seem to be such a royal waste of time to have this public agency hunker down and take the position it can avoid judicial challenge by simply refusing to put its decision in writing. That nefarious position would simply buy time for A&B [Alexander & Baldwin, owner of HC&S and EMI] to continue diversions for however long we take to resolve this particular dilemma,” he wrote.

Courts can review a preliminary decision if a party is prejudiced by being forced to wait for a final one, he continued, adding, “This is the first time I can think of where the agency simply refuses to put any decision in writing, and the court allows it to hide behind that obvious error.”

William Tam, deputy director for the Water Commission, said that the ICA had applied an odd standard to the commission’s decision, one that is usually imposed on Circuit Co
urt decisions. Late last month, Tam said he and commission chair William Aila have not had a chance to sort out what, if anything, they should do. “It may be simple … a piece of paper,” he said.

* * *

Water Supplies May Shrink Despite Impending ‘Wet Period’

“Despite what you’ve read in the press, global warming is unequivocal. What we need to do is to look at some of the science that isn’t well settled,” University of Hawai`i climatologist Thomas Giambelluca told the Water Commission in September.

According to Giambelluca, temperatures around Hawai`i and the sea level will almost certainly rise as a result of climate change.

How rising temperatures and other climate changes will affect rainfall, however, is still under debate. For example, researchers seem to differ in their opinions on the frequency and intensity of heavy rainfall events here in the coming decades.

Even so, Giambelluca presented enough data on temperature, rainfall, stream flow, humidity, and cloud thickness trends to raise serious concerns over the state’s ability to meet its future water needs.

Decision-making bodies like the commission would serve the people (not to mention the natural resources) of Hawai`i best if they took a precautionary approach to water and land management, Giambelluca suggested.

Not long ago, the conventional wisdom was that Hawai`i would be insulated from any strong impacts of climate change because of its location in the middle of the Pacific, he said.

But Hawai`i’s weather appears to be breaking from its normal pattern, which is heavily influenced by the Pacific Decadal Oscillation (PDO). Similar to El Niño Southern Oscillation (ENSO), the PDO to a large extent controls the amount of rainfall Hawai`i receives and it alternates (although not always) between dry and wet periods. But unlike ENSO, where El Niño or La Niña phases last three to seven years, a single PDO period spans decades. 

In the past few decades, temperatures in Hawai`i have been departing from the PDO index, possibly as a result of global warming, Giambelluca said.

Over the last 88 years, the rate of warming in Hawai`i has been about half the global rate. But in the last 30 years, the rate has equalled the global rate. And at high elevations over the same period, Hawai`i has been warming much faster than the average global rate.

An analysis of sea surface temperatures shows a similar pattern, although air temperatures are increasing faster than sea surface temperatures, he said, adding that relative humidity overall has decreased and clouds have gotten thinner.

The trade wind inversion (TWI), which effectively caps cloud formation, has been occurring more often in recent years.

“The more often the trade wind inversion is there, the drier our weather will be. And the lower it is, the drier our weather will be,” he said.

From 1980 to 1990, the TWI occurred 77 percent of the time. In the 1990s, the frequency increased to 90 percent, Giambelluca said. He added that the TWI is getting lower, as well.

“I don’t know if it’s associated with global warming. I don’t know if it’s still like this, since the latest data is from 2004,” he said. 

Should higher temperatures force the condensation level (the bottom of clouds) to rise, that would be a “double whammy” when combined with the TWI, he said. “Less cloud, less rain.”

Should evapotranspiration also increase as a result of greater solar radiation, that would be “another kind of double whammy, since it affects our supply and increases our demand [for water],” he said.

Already, long-term gage data has shown that Hawai`i has seen a downward trend in mean rainfall and, subsequently, stream flow.

Giambelluca noted that although Hawai`i appears to be going into a wetter PDO period, an overall drying trend persists “on top of that.”

When asked what could be done to address the drying trend, Giambelluca said that boards making decisions regarding water use and land development should be made aware of potential climate change impacts and take a precautionary approach. 

Also, he added, “We should be concerned about invasive species such as strawberry guava, which uses more water than `ohi`a. [With] less water in the ground and streams … we have to be good stewards of our water resources.”

With regard to the effects reduced rainfall will have on the state’s aquifers, Giambelluca pointed out that most of the methods used to establish groundwater recharge rates and sustainable yields of aquifers start with rainfall. 

“If you reduce the rainfall, you absolutely will reduce the recharge. There’s absolutely no way around that,” he said.

Consultant and water expert Jonathan Scheuer asked how Giambelluca’s findings might be used by the Water Commission to revise its sustainable yield numbers.

Giambelluca said he and his colleagues plan to develop recharge scenarios for the commission. 

“We have a team working on this, for 40 years out and 90 years out,” he said. “They will have some big error bars around them, [but] they could be utilized in a planning context.” 

He cautioned everyone that any predictions will “have a lot of uncertainty and it’s not going to be the end of the story.” As new information arises, estimates will be updated, he said.

Finally, he urged commissioners not to forget that as Hawai`i enters a wetter PDO period, it is still experiencing an overall drying trend. 

“Let’s not be too easily swayed by a fluctuating pattern. The next time we go into a drying phase [of the PDO] we could have severe water shortages,” he said.

* * *

Water Commission To Document Kuleana Water Rights

For the first time since its creation, the Water Commission will identify and officially recognize holders of appurtenant water rights, without direction from the courts.

The commission plans to start with appurtenant water rights holders in Na Wai `Eha (the four great waters) surface water management area in west Maui. Designated on March 13, 2008, Na Wai `Eha surface water management area was the first in the state. And so far, it’s the only one.

The commission designated the area in response to a petition filed by the Maui Tomorrow Foundation and a group of area residents and farmers known as Hui O Na Wai `Eha, both of which sought to restore stream flows diverted for decades by Wailuku Water Company and Hawaiian Commercial & Sugar Company.

Appurtenant waters rights, often referred to as kuleana water rights, are those that accompanied properties created during the Mahele of 1848, when lands in Hawai`i became fee simple. Once the Water Commission designates a surface water management area, surface water use is allowed by permit only. Because kuleana landowners have superior water rights, their needs must be addressed first. 

To date, the commission has accepted 177 complete applications for existing and new uses of water from Waihe`e River, and Wai`ehu, `Iao and Waikapu streams, collectively known as Na Wai `Eha. One-hundred twenty of those applicants — many of them members of Hui O Na Wai `Eha — claim appurtenant rights.

Because the commission lacks administrative rules regarding the determination and recognition of appurtenant rights, on September 27, the commission adopted a process to determine appurtenant rights in the area of Na Wai `Eha. 

The commission plans to notify potential claimants of its intent, determine whether or not a parcel has appurtenant rights, then decide how much water each eligible claimant will receive.

Commissioner Lawrence Miike noted that the amount of water associated with a kuleana parcel at the time of the Mahele may differ from what the commission eventually allocates.

Claimants must provide proof, which could include a deed containing terms or conditions regarding water, tax records, or other documents, demonstrating that their parcels were used
as a residence or for cultivation at the time of the Mahele.

Although the courts have recognized appurtenant rights has in the past, the state Water Code requires the commission to do it, William Tam, the commission’s director, said at its September 27 meeting.

Third parties may contest a claim, but they must have standing, he said, adding that the commission would likely rule on uncontested claims first.

Earthjustice attorney Isaac Moriwake thanked the commission for its efforts, which he called “historic” and “a long time coming.” As an attorney representing Hui O Na Wai `Eha and the Maui Tomorrow Foundation, he offered to help the commission verify any claims.

“We’ve spent an inordinate amount of time researching, documenting these rights. We’re intimately familiar with the nature of these rights and have on-the-ground knowledge,” he said.

Moriwake asked that oral kama`aina history be allowed as a form of evidence.

He and Pamela Bunn, an attorney representing the Office of Hawaiian Affairs, asked that the commission dispense with publishing a notice for potential claimants because the cost of publishing has to be paid by the applicants.

Moriwake noted that the 2008 notice for water use permit applications cost his clients a lot of money and, most likely, captured all potential applicants.

A new notice costing thousands of dollars would be a significant burden for private citizens who are “basically using their … water for subsistence purposes,” he said. “All you need to do is provide notice to anyone who staked a claim, rather than have an entire new round.” 

Regarding the commission’s criteria for allocating water, water quality expert David Campbell Penn urged it to consider water quality, as well as the quantity.

If the amount used on a parcel at the time of Mahele was “cool, clear water,” and still is, that’s fine, but if “it’s hot and pilau,” the commission may need to reconsider the volume issue, he said.

Penn also recommended that the commission address the water quality/quantity issue from a “hydrologically based approach, rather than an ad hoc case-by-case, parcel-by-parcel approach.”

For Further Reading on Maui Stream Disputes

Environment Hawai`i has given extensive coverage to East Maui water issues over the years. For more background, see the following:

•“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;

•”Land Board Orders EMI to Release Water to Meet Needs of East Maui Taro Farmers,” May 2007;

•“Commission Gains Funds, New Tools to Pin Down Water Use, Stream Needs,” September 2006;

•”Ex-Judge Says East Maui Farmers Don’t Need More Water for Taro,” August 2006;

•“Water Commission is Urged to Look at Lessons from Mono Lake Dispute,” August 2005;

•”Board Talk: Land Board Favors EMI Water Diversion,” March 2003;

•”Board Talk: East Maui Water Dispute Heats Up with Hearing Officer’s Recommendation,” January 2003;

•”Board Talk: Contested Case on Renewal of EMI Water Permits,” July 2001;

•”Battle Looms Over Waters Diverted from East Maui Streams” and “Complex Legal Issues Surround A&B’s Taking of East Maui Water,” August 1997.

Environment Hawai`i has also published several articles that provide additional background to the dispute over West Maui surface water:

•Commission’s Order on Na Wai `Eha Baffles Its Most Experienced Member,” July 2010;

“Parties Conclude Debate over Impacts of Stream Restoration in Central Maui,” November 2009;

•“Hearing Officer Issues Recommendations for Na Wai `Eha Contested Case Hearing,” June 2009;

•“Wailuku Companies Seek PUC Approval to Serve Existing, Future Water Users,” November 2008;

•“Commission Tightens Grip on Waters of Central Maui,” May 2008;

•“Hearings Begin in Contested Case over Diversion of West Maui Streams,” “USGS Seeks Temporary Releases For Study of Instream Values,” and “Wailuku Water Co. Sells Ditch Water Without Consent of Utilities Commission,” December 2007;

•“Finally, a Schedule for Contested Case Over Charge of Wasting Maui Stream Water,” January 2007;

•“Commission Orders Contested Case Mediation for Maui Water Disputes,” March 2006;

•“Commission Struggles with Conflicting Claims Surrounding West Maui Stream Diversions,” February 2006.

Teresa Dawson

Volume 22, Number 5 — November 2011

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