Arbiter in Maui Water Case Gives Weight To A&B’s Tentative Diversified Ag Plan

posted in: September 2017 | 0
East Maui Irrigation System

With the closure last December of Hawaiian Commercial & Sugar’s (HC&S) sugarcane plantation, most of its former fields in Central Maui now sit fallow. Some cattle graze on a small portion, and the company has made moves to grow bioenergy crops and sell about 850 acres to Maui County for use as an agriculture park. But despite interest from a number of farmers wanting to use the remaining former cane lands, HC&S has claimed that none have been willing to commit to cultivation without some assurance they will have access to adequate, affordable water.

Most of the water that has historically fed the Central Maui plain comes from streams diverted by the East Maui Irrigation System, which is owned by HC&S parent company, Alexander & Baldwin (A&B). No one can know whether or not the state Board of Land and Natural Resources will continue to allow A&B to divert water from tens of thousands of acres of state land in East Maui. The company’s current holdover permits expire in December.

But last month, HC&S’s efforts to retain enough water to bring its diversified agriculture plans to life got a boost: hearing officer Lawrence Miike found that all of the company’s proposed future uses of some 26,000 acres (i.e., orchard and beverage crops, a dairy) were reasonable and beneficial. For the last few years, Miike has been presiding over the contested case before the state Commission on Water Resource Management (CWRM) brought by a group of native Hawaiian residents of East Maui called Na Moku ‘Aupuni o Ko‘olau Hui over the interim instream flow standards (IIFS) of about two dozen streams that have been diverted for roughly a century.

Miike’s recommendations regarding beneficial and reasonable off-stream uses of water issued in late July and amended on August 2 aren’t vastly different from those he issued in January 2016, when HC&S was still actively growing sugarcane. Back then, Miike proposed amending the IIFS of some of the streams so that a total of about 18 million gallons a day flowed in them. That amount of water, he believed, would meet the needs of East Maui taro farmers who made up Na Moku, and would also restore habitat for stream animals. That amount would also provide HC&S and the Maui Department of Water Supply (DWS) enough water to meet all of their needs most of the time.

Because Miike had based his 2016 recommendations on evidence presented well before HC&S announced that it would cease its sugarcane operation, there was immediate pressure on him and the Water Commission to re-evaluate off-stream water needs given that the largest user of the diverted water was soon no longer going to need most of it.

In the months that followed, to appease those (including Na Moku) calling for the end of all of A&B’s diversions, the company committed to fully and permanently restore all of the petition streams that supplied water to taro fields in East Maui. The Water Commission incorporated that commitment into an interim order. In the meantime, Miike held more hearings to determine how his 2016 recommendation should be amended given current uses of and potential needs for the diverted water.

Water Needs

In its opening brief, HC&S submitted a March 2016 Diversified Agriculture Plan for its former sugar cane fields. The plan identified 26,600 acres that required irrigation, some of which also had access to well water. Those lands would be used for pasture; a dairy; orchard, beverage and biofuel crops; and an agricultural park, among other things. Those uses were estimated to need a total of about 115 mgd.

To give a sense of how close it was to securing or identifying actual tenants for the lands, HC&S stated that it had received 60 promising inquiries about using its lands. If those projects were to come to fruition, they would occupy 19,500 acres, it stated. As of the close of the hearing, the company was in active discussion with only 15 of those prospects.

To Na Moku and the Maui Tomorrow Foundation (MTF), an intervenor in the case, HC&S had not provided sufficient evidence backing up its projected water needs.

“HC&S essentially asks the CWRM to accept, on their word alone, that uncertainty over the availability, quality, and cost of water to irrigate its former sugar cane lands is preventing third-party persons and entities from signing leases under the company’s diversified agricultural plan,” Na Moku stated. MTF added that if the Water Commission simply accepted the company’s claimed need of 115 mgd for reasonable and beneficial uses, it would be a “gross over-allocation.”

What’s more, MTF pointed out, potential agricultural users in other parts of the island designated for agriculture — in Hana, Paia-Haiku, and Makawao-Pukalani-Kula — had not been given an opportunity to participate in the Water Commission’s re-opened proceedings and discuss their potential water needs.

“It would constitute a breach in the management of these public trust water resources to include within the class of potential reasonable and beneficial users (other than the MDWS) only those who may execute a lease from A&B for portions of the 36,000 acres of former plantation lands,” MTF stated.

Projected uses aside, MTF argued that all of A&B’s current “bona fide needs” could be met by the 20 streams diverted by the irrigation system that are not subject to Na Moku’s petition.

The group went on to accuse A&B of keeping its lands in agriculture only “as a temporary holding strategy along the path to profit from sale or development of land.”

It continued that A&B had sold 339 acres of its former cane lands after it had submitted its Diversified Agriculture Plan to the Water Commission. “Despite selling the 339 acres, HC&S’ speculative future need for water stayed about the same when logic would have dictated that the need for irrigation water would have been reduced.”

HC&S cannot be allowed to retain as much diverted stream water as it can, based upon “vague, cursory and unsupported descriptions of conjectural future agricultural uses of its currently fallow lands,” MTF stated, adding that the Hawai‘i Supreme Court found in a previous water case that the Water Commission may consider projected water needs that “are real and supported by evidence.” The group said documentary evidence must be required to substantiate claims to potential uses of water.

Given the vast reduction in HC&S’s actual water needs, “the ‘maximum benefit’ can now be realized by fully restoring stream flows and eliminating diversion structures,” MTF concluded. A&B had already committed to fully and permanently restoring seven streams used by taro farmers. For the maximum benefit for stream species and habitats, the remaining 16 petition streams “shall also be fully restored and all diversion works fully and completely removed within one year,” MTF recommended.

The group determined that reasonable and beneficial present irrigation requirements for diversified agriculture were only 3 mgd plus reasonable system losses of 22.7 percent. For the DWS, reasonable beneficial uses totaled 7.1 mgd, it found.

Na Moku recommended a slightly more conservative restoration scenario. It proposed limiting diversions to two of the four A&B license areas in East Maui, Huelo and Honomanu. For streams in the Huelo license area, Na Moku noted that A&B had committed to fully restore Honopou and Hanehoi/Puolua streams. For the Honomanu license area, the group notes that Honomanu Stream is undiverted. It recommends that Waikamoi, Puahokamoa, and Haipuena streams have their IIFS set to support minimum habitat or 64 percent of median base flows. For Alo, Wahinepee, Punalau/Kolea, and Nuaailua streams, 100 percent of median base flow should be restored, it stated.

Miike Decision

On August 2, Miike issued his own recommendations. In short, he pretty much accepted all of HC&S’s projected water uses as reasonable and beneficial.

“The public interest includes not only protecting instream values but also preserving agricultural lands and assuring adequate water supplies for Maui. The Commission needs only to reasonably estimate instream and offstream demands, and may base the IIFS not only on scientifically proven facts but also on future predictions, generalized assumptions, and policy judgments,” he stated.

He found that the aggregate irrigation requirement for HC&S’s 26,996 acres was 3,305 gpad, or an average daily requirement of 89.21 mgd. With reasonable irrigation system losses of 26.22 mgd, Miike determined that the company would require a total of 115.43 mgd to fulfill its diversified agricultural plan.

“Additional reservoirs, recycled wastewa- ter, and [water from] Maui Land and Pine are not reasonable alternatives based on analyses of costs, technology, and logistics. In the future, 2.95 mgd to 4.2 mgd — and up to a capacity of 7.9 mgd — might be available from the Kahului Wastewater Reclamation Facility,” he stated.

The facility must be upgraded to treat wastewater so that it can be applied to all manner of crops. Such an upgrade was estimated in December 2010 to cost nearly $5 million, Miike noted. He added that the water would also need to be piped to the airport and then to East Maui fields.

HC&S could use up to 23.09 mgd of brackish well water, thereby reducing its stream water needs to 92.34 mgd, he found. Because the company already receives 8.59 mgd of stream water from A&B’s lands, Miike determined that HC&S would need only 83.75 mgd from streams listed in Na Moku’s petition.

With regard to the DWS’s needs, Miike wrote, “use of 7.1 mgd of water from the Wailoa Ditch would seldom compete with the amended IIFS’s increased needs, and if such competition occurs, it would be for only a few days a year.” If the DWS eventually receives the maximum amount allowed for under its agreement with East Maui Irrigation Co. (an A&B subsidiary) —16 mgd —the agency could have a deficit of about 8 mgd or more, he stated.

Miike noted that six of the petition streams have had 14.32 mgd restored to their base flows: Makapipi Stream, Wailuanui Stream, Waiokamilo Stream, Palauhulu Stream, Hanehoi/Puolua Stream, and Honopou Stream. He recommended that flows to those streams, as well as four others, be increased to provide for “sufficient habitat for the full growth and reproductive cycles of stream animals.” Compared to existing diverted flows, Miike recommended that 12.15 mgd be restored to those streams.

He further recommended that the IIFS for Piinaau and Kulani streams remain at status quo, since Kulani has never been diverted and Piinaau converges with Palauhulu Stream, which A&B plans to fully restore. The IIFS for nine other streams would also remain the same as they were when designated on October 8, 1988.

If the Water Commission adopts Miike’s recommendations, it would “increase flows for 12 of the 22 streams that have been diverted by the EMI Ditch system, adding approximately 26.49 mgd to the streams from their diverted base flows, including six streams that will have their flows returned to their undiverted, natural flows. An undetermined amount of rainwater would also be returned to these six streams,” Miike wrote.

Between 2011-2014, EMI diverted an average of some 108.89 mgd from state lands. IIFS at the time dictated that 13.95 mgd was to remain in the petition streams during the wet season and 5.61 mgd was to remain in the dry season. “If we assume that these amounts would be included in the 26.49 mgd of base flows that will be returned to the streams, the additional restoration over [IIFS set by the Water Commission in 2008 and 2010] would be 12.54 mgd to 20.88 mgd, leaving 88.01 mgd to 96.35 mgd of the 108.89 mgd that was diverted. Compared to the maximum requirements for HC&S of 83.75 mgd and MDWS of 16 mgd, the total of 99.75 mgd is 3.4 mgd to 11.74 mgd short of the estimated surface water that would be available and well within what might be reasonably expected to be actually required in the future,” Miike concluded.

— Teresa Dawson

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