Mediation Over West Kaua`i Stream Diversions May Hinge on Response to Information Request

posted in: July 2015 | 0

Last month, the Kekaha Agriculture Association (KAA) and the state Agribusiness Development Corporation (ADC) informed the state Commission on Water Resource Management that they were willing to participate in mediation regarding a 2013 waste complaint and a petition to amend the interim instream flow standards for the streams that feed Kaua`i’s Waimea River.

In a June 5 letter to the Water Commission, attorney Douglas Codiga, representing KAA, also agreed to allow the commission’s investigator, Steve Spengler of Element Environmental, LLC, to monitor flows within the Kekaha and Koke`e Ditches and evaporation losses from reservoirs on the Mana plain. The organization, which maintains and operates the ditch systems for the ADC, its landlord, also agreed to assist Spengler with his measurements.

In response to the complaint and petition, filed by Po`ai Wai Ola and the West Kaua`i Watershed Alliance, the Water Commission hired Spengler to assess how and where the Koke`e and Kekaha systems were diverting the Waimea River’s headwaters. Spengler’s initial findings, released earlier this year, suggest that some of the 50 million gallons of water a day diverted via the two former sugarcane plantation systems was going to waste.

To better understand how KAA members and the ADC are using the water, and whether those uses are reasonable and beneficial, Water Commission chair Suzanne Case wrote the ADC and KAA on May 11, asking them to provide information regarding 15 areas where her agency needs more information. Among other things, she asked for details on who uses or has used the water, how much they use or used, what for, and how and where the diverted water is moved around.

She asked that they respond within 60 days. She also asked them to indicate within 30 days whether they would be open to mediation.

Dean Uyeno of the Water Commission’s Stream Protection and Management Branch has been coordinating mediation efforts and says that the state Department of Hawaiian Home Lands, which owns land served by the irrigation system, the Kaua`i Island Utility Cooperative, and the ADC are all willing to participate in mediation along with the KAA. Kaua`i County also indicated asked to reserve its right to participate in the mediation.

He said Earthjustice, the law firm representing the petitioners, is also willing, “but their participation is subject to the data that KAA/ADC submits,” he says.

“Until we’re on equal footing and have bonafide disclosure, we question the efficacy of mediation,” Earthjustice attorney Isaac Moriwake said at the Water Commission’s meeting last month.

He added that in working to restore stream flows in the Na Wai Eha case on Maui, he Water Commission staff had to issue several rounds of letters to the water diverters to follow up on the response it received.

“I think at least staff and the commissioners should be prepared for the possibility that this information gathering may go on beyond this initial letter,” he said.

He then reminded the commission that the petition has been pending for almost two years.

“Delay favors the diverters because their status quo benefits their diversion. The lack of information benefits their diversions in the same way,” he said.

Outgoing commissioner Denise Antolini agreed that the Water Commission can’t wait forever to get all of the information it wants.

“Because of public trust responsibilities and the precautionary principle … there’s a point at which the commission needs to act to protect the resource even without the data,” she said.

She suggested that should the ADC/KAA fail to respond in a timely manner or provide insufficient responses, the Water Commission could issue an order to show cause why remedial action regarding water waste shouldn’t be taken immediately. Under such an order, the ADC and KAA would have the burden of proving why it should be allowed to maintain the status quo.

“It’s an extremely useful tool short of the commission making a decision on the merits,” she said.

Moriwake added that commission staff could on its own draft an order that the ADC and KAA stop specific acts of water waste.

“There’s low hanging fruit here,” he said. “Based on all the information we know, there’s no reason why the diverters couldn’t address this low-hanging fruit now. One example, the fake waterfall issue. Why do we drain headwater streams dry and dump that water?”

Moriwake was referring to one of Spengler’s findings that the Koke`e Ditch takes water from four streams and dumps it into Koke`e Stream, creating a consistent waterfall when, under undiverted conditions, it would be dry.

Steve Spengler presents some of his findings to the Water Commission.


Moriwake and Case both agreed that such matters could also be dealt with in mediation.

At its August meeting, the Water Commission is expected to receive a briefing on the ADC/KAA response, which is due July 11. Depending on what’s submitted, commission staff may or may not recommend an order to show cause.

In the meantime, the future of water use at Kekaha is in flux. While Po`ai Wai Ola and the Kaua`i Watershed Alliance are calling for the restoration of streams that have long been dewatered or severely restricted, one of ADC’s largest tenants in Kekaha, seed-corn grower Syngenta, months ago forfeited hundreds of acres it leased from the agency. But so far, there has been no talk of returning the water used on those fields to streams.

At an April meeting of ADC’s board of directors, state Department of Agriculture director Scott Enright said the agency should try to find a farmer who wants to plant food crops on the former Syngenta lands.

Meanwhile, the ADC recently amended a right-of-entry permit granted to KIUC in February 2014 to conduct field investigations for a 20 megawatt pumped storage hydropower project the utility wants to build using the irrigation system, including its reservoirs.

— Teresa Dawson

For Further Reading

The following are available at

  • “Early Findings on Claims of Kaua`i Water Waste,” March 2015;
  • “Kaua`i Pumped Storage Project Wins Preliminary Approval of Land Lease,” December 2014;
  • “KIUC Advisor Outlines Potential Impacts of Pumped Storage Projects in West Kaua`i,” October 2014.

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