Water Board Grants Permit, Waives Fine For Maui Taro Farmer’s Stream Diversion

posted in: September 2016 | 0

At the end of a long and sometimes emotional meeting, after most of the public had gone, Jeffrey Pearson apologized to members of the state Commission on Water Resource Management for having them spend so much time on something that maybe shouldn’t have come before them in the first place.

As the commission’s chief executive officer, Pearson was responsible for forwarding his staff’s recommendation last month to grant Maui water rights icons John and Rose Marie Duey an after-the-fact stream diversion works permit for a pipe they installed in the Wailuku River more than a decade ago to feed their land. But staff also proposed that the commission find that the Dueys had violated the state Water Code and impose a fine of $4,500 for failing to secure the permit in a timely manner.

The fine recommendation quickly drew ire from members of the public who follow water issues. Attorneys with the environmental law firm Earthjustice and the University of Hawai`i law school who had been working with the Dueys and commission staff toward a resolution of the outstanding permit jumped to the couple’s defense.

“It’s like fining Rosa Parks for sitting in the wrong seat on the bus,” Earthjustice’s Isaac Moriwake said of the commission staff’s proposal.

At the Water Commission’s August 16 meeting, representatives from the Office of Hawaiian Affairs, the Sierra Club of Hawai`i, Hui o Na Wai Eha, and others joined the Duey family in expressing their outrage at what they saw as unnecessary and unfair persecution of people exercising their constitutionally protected water rights. Even Maui mayor Alan Arakawa submitted testimony asking that the commission consider mitigating the fine given all that the Dueys had done over the years to restore severely dewatered streams in West Maui.

The Water Commission ultimately voted to approve the permit, but not the fine. Nearly all of the commissioners at some point apologized to the Dueys, who had to fly in to Honolulu to defend themselves. What’s more, the commission voted to radically increase the amount of water they could divert and instructed staff to work toward creating an expedited permitting process for traditional and customary uses of water — such as growing taro — which are protected under the state Constitution and Water Code.

Cracking Down

The Dueys were not the first taro farmers to land in the Water Commission’s crosshairs this year. In January, the commission fined Kamehameha Schools $900 for allowing its tenants, farmers Alfred Harada and Sierra-Lynn Boro-Harada, to install eight intakes in Kaua`i’s Lumaha`i River more than a decade ago without a permit. Those intakes together divert more than a half a million gallons of water a day (mgd) from a stream that has an average flow of 75 mgd. The farmers grow not only taro, but banana, ti and luau leaf.

“This is the first of several enforcement actions dealing with stream diversion works, dealing with taro,” commission staffer Rebecca Alakai said at the commission’s January 28 meeting. Although taro growing is considered a traditional native Hawaiian practice, which some have argued doesn’t need a permit, “if there’s no penalty, then we lose all control over granting permits,” she said. “I totally understand the issues with traditional and customary practices and appurtenant rights,” she added, “but … I’m not sure if you should say that [diverting without a permit is] fine for this crop and not fine for that crop.”

The commission’s stream protection and management program manager Dean Uyeno explained that while a diverter may have a right to the water, the law requires a permit be acquired to take it. Without the permits that document stream diversions, the commission would have a difficult time managing competing water uses, he argued.

Commissioner Kamana Beamer said he understood staff’s desire to avoid setting a precedent of letting anyone use the stream whenever they want. “At the same time, I’m just trying to figure out, have we thought through this in the adverse?” he asked, noting that there are thousands of ancient Hawaiian stream diversions, some of which have been “updated.”

“Are we going to go and fine all these users 900 bucks or in excess of that …?” he asked. He later suggested that the commission develop a process to deal with issues surrounding traditional and customary rights and appurtenant rights so the commission isn’t fining people who’ve been farming taro in valleys where it’s been cultivated for 900 years.

“That makes no sense to me at all, especially given the fact that we’ve visited water systems on other islands and we’ve seen taro streams diverted by … flumes … run by private companies that are drawing revenues off water,” he said.

Uyeno explained that back in 1989, the commission initiated a registration process for stream diversions throughout the state that captured most of the current taro growing areas as well as the plantation irrigation systems. He added that those who can prove they were using water at that time can simply register their diversion with the commission.

In the case of Kamehameha Schools, new diversions, including pumps, were installed, he said.

“It might have been a different case if they were using a traditional auwai,” he said, referring to the irrigation canals that Hawaiians built to irrigate taro.

With regard to the proposed fine, some commissioners complained that it was just a “slap on the wrist” for such a wealthy entity.

“It’s just not right, an institution of that magnitude does something like this and gets away with it. I mean $900, they drop that money on the floor when they put their pants on in the morning,” said commissioner William Balfour.

Kamehameha Schools representative Joey Char stressed that the organization took action as soon as it was made aware of the fact that it lacked a permit for the diversions.

“It really was just, for lack of a better term, an oversight,” she said.

According to its report to the commission, staff considered Kamehameha Schools’ willingness to act quickly and in good faith to remedy the problem as a mitigating factor when it set the proposed fine, which the commission ultimately approved.

Staff Report

At the same January meeting, Uyeno said commission staff was with dealing with cases similar to the Kamehameha Schools case on the four West Maui streams collectively known as Na Wai Eha (Wailuku and Waihe`e Rivers and Waiehu and Waikapu streams). The non-profit group Hui o Na Wai Eha — co-founded by John Duey — initiated a contested case on the use of water from those streams more than a decade ago and hearings are ongoing to determine the amounts of water to be allocated via water use permits. In addition to commercial users, more than 100 appurtenant rights claimants are vying for the same water. “That’s when permitting comes into play; we need to balance those uses,” Uyeno said.

In the meantime, with tens of millions of gallons of water a day now flowing in those streams as a result of another contested case hearing and a 2014 settlement agreement, some people have decided on their own to stick pipes into the stream.

“Now we have to chase the guys down because it’s not fair to everybody else who’s been waiting in line for their permit,” Uyeno said.

In the course of ensuring that all existing water users in the Na Wai Eha contested case have authorized diversions, Water Commission staff found that the Dueys’ company, Ho`oululahui, LLC, did not have an approved stream diversion works permit for 800 feet of pipe installed some time after 2001. The pipe diverts about 26,600 gallons per day for domestic and agricultural uses, including taro farming.

In 2004, a staff report states, the Dueys were informed that they needed to apply for a diversion permit, which they did in 2005. The commission deemed the application incomplete, however, and directed the Dueys to provide more information (i.e., a scale drawing and vicinity map) and to file a petition to amend the interim instream flow standard (IIFS). A contested case hearing on the IIFS was ongoing at the time, however, and wasn’t resolved until nearly a decade later. In April 2014, the IIFS for the Wailuku River, from which the Dueys drew their water, was set at 10 mgd under a mediated settlement with the Hui, Maui Tomorrow Foundation, the Office of Hawaiian Affairs, Hawaiian Commercial & Sugar Co., Wailuku Water Company, and the County of Maui Department of Water Supply.

The Dueys refiled their application in May 2015, but did not include a filing fee or the previously requested information, the staff report states. Even so, in February, the Dueys submitted a briefing in the water use permit contested case indicating that they are seeking 1.4 mgd from Wailuku River for new and existing uses.

On March 9, the commission issued them a Notice of Alleged Violation for the diversion and gave them until April 8 to explain how they intended to resolve the matter. Within a week, attorneys with Earthjustice (Isaac Moriwake and Summer Kupau-Odo) and the University of Hawai`i law school (Kapua Sproat) met with commission staff, on behalf of the Dueys, to discuss the steps necessary to resolve the alleged violation. But by April 8, the report states, “the commission received no response from the Dueys.” Less than a week after being notified on April 27 that the matter would be brought to the Water Commission, however, the Dueys submitted the information needed to complete the application.

In an attempt to be consistent in its enforcement, commission staff strictly applied its penalty guidelines, which allow for fines to be increased to reflect the gravity of the violation or reduced when there are mitigating factors. In the Dueys’ case, staff found that the diversion of 26,600 gpd (22,000 of which is returned to the river) was an insubstantial modification of the IIFS, but that the Dueys had not made a good-faith, speedy or diligent effort to remedy the violation or had self-reported it in a timely manner. Instead, the staff report states, “Over a 12-year time span, commission staff contacted the Dueys regarding the need for a permit, including many phone and in-person discussions with the applicant and his representatives. Hui o Na Wai Eha is a party in numerous proceedings before the commission. Mr. Duey, as president of the Hui, is well aware of Water Code requirements regarding permit requirements in Water Management and non-Water Management Areas.” The report added that the Dueys had failed to meet the April 8 deadline to contact the commission and they “only responded after staff emailed a reminder of the Notice of Alleged Violation and a copy of the Civil Penalty Guideline.”

In its August 16 submittal to the commission, staff recommended imposing a $500 administrative fee, plus a penalty of $250 a day for the 16 working days between April 8 and May 3, when the Dueys’ application was deemed complete. In lieu of paying the penalty, staff gave the Dueys the option of completing a project that results in “new water resources information, provides water resources education, or benefits the water resources of the state.”

‘Tone Deaf’

By the time the Water Commission met on August 16, it had received an abundance of testimony against the proposed fine. Had he not been a commissioner himself, Mike Buck might well have been among them. When it came time to question staff, he led by asking Uyeno whether he believed the Dueys were trying to go through the permitting process in good faith.

“I do. We hold the Dueys in high regard. … We recognize the work they’ve done,” Uyeno said, referring to their years of effort to restore Na Wai Eha and other taro growing areas on Maui. Still, he noted, staff has been following up on illegal diversions in Na Wai Eha and elsewhere. Some who’ve been notified of their potential violations have promptly removed their diversions, he said. The Duey case, however, “has been on the books for a while. Especially with the contested case pending, we wanted to make sure they’re legal.”

Buck expressed his concern that the case may put the Water Commission in a bad light at a time when it is about to fully implement the state Water Code for the first time.

Given all the actions the commission has ahead of it, “it’s unfortunate we have this case,” Buck said. “We need public support to implement the Water Code. I think it’s important we’re not tone deaf.”

When commissioner Neil Hannahs asked Uyeno what kind of project he thought the Dueys could do as an alternative to paying the fine, Uyeno said he hadn’t given it any thought, but, “quite frankly, knowing the Dueys and the work that they’ve done, [it] should certainly serve as an alternative.”

Commissioner Beamer lamented that the staff’s report didn’t include any statement of whether or not the diversion was part of a traditional and customary practice or any analysis of whether there was an auwai. Uyeno stressed that the case was not bringing into question anyone’s water rights or usage, but merely dealt with the lack of a diversion works permit. Even so, Beamer reiterated his suggestion that the commission have a separate process for dealing with people who have traditional and customary rights.

‘Baffled, Frustrated, and Angry’

When it was Rose Marie Duey’s turn to testify, one of the first things she pointed out was the fact that her property had once been fed by a traditional auwai, but it was later bulldozed by another property owner. Uyeno’s predecessor, David Higa, was aware that their auwai had been bulldozed and he gave them permission by phone to put in a pipe, she said.

Part of the pipe the Dueys installed in Wailuku River more than a decade ago.
Part of the pipe the Dueys installed in Wailuku River more than a decade ago.

“Today, I am baffled, frustrated, and angry. This represents the absolute worst of bureaucracy,” she continued. “Someone ran across the Dueys permit application and decided to fine us $4,500. Imagine that, $4,500 and for the past 15 years we have been doing your job,” referring to the fact that it was her family, and her husband, in particular, who filed petition to amend the IIFS of Na Wai Eha.

After a long contested case hearing on the petition, the Water Commission issued an order that did not include restoring water to Wailuku River. The Hui successfully appealed the decision to the state Supreme Court, and the matter was later settled in 2014. But despite that settlement, in which Hawaiian Commercial & Sugar and Wailuku Water Company committed to restoring 10 million gallons of water a day to the river, nothing happened for six months and those at fault were never fined, she said.

As for her case, she said, “I thought we were working together for another permit. … Instead, you were working to fine me after your staff gave me permission to put in a pipe.”

In 2003, the Dueys approached the Water Commission about installing the pipe, sending photos and a map to Higa, according to Rose Marie’s daughter Nani Santos. In discussing the permit with Higa, Rose Marie said she asked about her traditional and customary rights. “That’s when Mr. Higa said, ‘If you are a Hawaiian and farming traditional kuleana lands, you don’t need a permit. I believed what Mr. Higa said and laid the pipe. That was not a cheap pipe. I would not have put money into that without permission,” she said.

She noted that commission staff informed them earlier this year that they would need to petition to amend the IIFS again, but later retracted that position. She also took issue with the staff’s claim that they did not respond to the commission’s requests. “We immediately responded,” she said, noting that attorneys on their behalf met with commission staff.

“During that meeting, nobody informed us we would be fined for every day our application was incomplete,” she said.

Santos later added that on March 16, the day the attorneys met with CWRM staff, her mother had written a letter about three items deemed incomplete, but staff failed to mention that in its submittal. And Earthjustice counsel Summer Kupau-Odo also testified later that at their meeting with staff, it was understood that the Dueys had to complete four items, one of them being to ask the U.S. Army Corps of Engineers to determine whether the work required a Corps permit as well. Getting an answer to that, she said, took some time and in the meantime there were emails and phone calls with commission staff.

Rose Marie scolded the commission for not doing more to protect the auwai that once served her land. “I would not be here if the ancient auwai system had been protected and water flowed into the manawai. Neither would we be going through the [water use permit process]. Our waters would still be there and protected.”

“I have traditional and customary native Hawaiian rights to grow kalo and feed our family. … We trust you will make this right by issuing our permits without a fine,” she said finally.

Commissioners William Balfour, Suzanne Case, and Hannahs all thanked Rose Marie for “clearing the air.” Case and Hannahs went so far as to apologize.

Despite their apologies, Santos sounded off on the commission and its staff. Noting the $900 fine for  Kamehameha Schools for 15 years of diverting without a permit, she challenged someone to step forward and justify the fine against her family, especially since it was her family who initially contacted commission staff about the pipe 13 years ago.

“Charges and suggestions we were non-responsive are false. Convenient dates were eliminated. It’s no wonder my parents are exhausted and frustrated by this whole process,” she said. “This commission has asked for a tremendous amount of proof. … When will you do the same for the huge diverters of our stream waters?”

Kupau-Odo also pointed out that the Dueys had responded to all of the commission’s requests for information within a month and a half of meeting with staff.

“We’re urging you to consider the countless personal sacrifices they endured over the years. I don’t think people understand what it’s like to be at the forefront of litigation,” she said. “It’s a burden they’ve had to shoulder.”

‘Travesties of Justice’

UH law professor Sproat, formerly one of the Earthjustice attorneys who filed the Hui’s various petitions aimed at restoring and protecting West Maui water resources, was the final testifier. Sproat, who directs the university’s environmental law clinic and provides support to commission staff, said that in all of her years, “this is one of the greatest travesties of justice and one of the worst instances your staff has got it wrong. … Uncle John and aunty Rose aren’t whiners. What your staff has put them thorough is just wrong, legally, morally, and practically,” she said.

Echoing Beamer’s earlier suggestion, Sproat urged the commission to adopt an expedited permitting process for people like the Dueys, similar to what the state has done for those wanting to restore ancient Hawaiian fishponds. She also suggested that in approving their permit, the commission amend the amount to be taken from the stream from 26,600 gallons per day to something that better reflects what they will actually be taking once the water use permit process is complete.

The commission ultimately voted to approve the permit for a pipe diverting up to 410,000 gallons per day, which Sproat said reflects the amount that was considered in the 2014 settlement over the Wailuku River’s IIFS. The permit would acknowledge that amount would be for domestic and diversified agriculture uses and any excess would be returned to the river. What’s more, the diversion would ultimately be subject to the water use permit. The commission deleted all recommendations regarding a violation or fines and also directed its staff to work on an expedited permitting process for traditional and customary uses of water — a process state Department of Hawaiian Home Lands representative Kaleo Manuel said his agency would be willing to participate in.

 

Aftermath

In the wake of the commission’s decision, staff is concerned that the public may interpret it to mean that anyone, not just native Hawaiian taro farmers, don’t need to obtain permits, Uyeno told Environment Hawai`i. “We are also wary that this may begin to take us down the road of having to consider native Hawaiian lineage, etc. What happens if a taro farmer is not native Hawaiian, or a native Hawaiian is growing something besides kalo, or the kalo cultivation is associated with a larger commercial tourism venture?” he asked.

“We can see this happening to a small degree in East Maui and Na Wai Eha when streamflows are restored,” he continued. “People see more water in the stream, so now there is water available for them to use as well.  If enough people take water, then we’re right back in the same situation.  As we work to develop measurable instream flow standards, recognizing that some are via contested case hearing, there needs to be an accounting of all diversions to ensure that the instream flow standards are complied with.  The SDWP [stream diversion works permit] process is one tool to help the Commission account for flows diverted from the stream.”

He added that the existing permitting process in not difficult and that staff tries to process all permits within 90 days, but difficulties sometimes arise out of issues outside the commission’s jurisdiction (e.g., land access to where the diversion/transmission is located).  “At some point, we issue a notice of alleged violation to ensure that the diverter understands and acknowledges that a violation occurred.  This starts the clock ticking to ensure that the process keeps moving forward, particularly when it appears that the applicant may be delaying the process,” he said.

— Teresa Dawson

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