Over the past year, Hawaiian Commercial & Sugar Co. went from cultivating tens of thousands of acres of one of the thirstiest crops, sugarcane, to raising cattle, experimenting with biofuel crops on a tiny fraction of that land, and working toward securing lessees willing to be a part of its diversified agricultural plan for the area. So when hearing officer Lawrence Miike recommended last August that a mere 6.7 percent of the roughly 117.59 million gallons of water a day (mgd) HC&S’s parent company Alexander & Baldwin, Inc. (A&B), had in recent years diverted from East Maui streams be restored, it didn’t go over so well with the native Hawaiians and environmentalists who’d been fighting for the water’s return for decades.
Predictably, HC&S and the Maui Department of Water Supply, which receives a portion of the diverted water, raised no objections, since the proposed decision would provide them with nearly everything they’re seeking.
Miike’s recommendations would leave 109.7 mgd available for continued diversion to HC&S’s former plantation lands in Central Maui and to the Maui Department of Water Supply, noted Isaac Hall, attorney for the Maui Tomorrow Foundation (MTF), in his exceptions to Miike’s recommended findings of fact, conclusions of law, and decision and order in the contested case hearing before the Commission on Water Resource Management on the interim instream flow standards (IIFS) of two dozen East Maui streams.
“[A]t first blush, this may seem to demonstrate that there are still plentiful amounts of water available for offstream uses and us- ers. Instead, what this actually demonstrates is that there is a grave imbalance between instream and offstream uses and that the determination of instream reasonable and beneficial requirements were erroneously determined and balanced,” he wrote.
Hall stressed the imbalance by pointing out that the East Maui area that A&B rents from the state to divert water via its extensive East Maui Irrigation Co. (EMI) system includes 20 other streams that are not subject of the IIFS amendment petition filed 16 years ago by Na Moku Aupuni O Ko‘olau Hui, a group of native Hawaiian residents and farmers in East Maui. Those 20 streams, “although equally protected under the State Constitution, are receiving absolutely no protection and no reliable restored flows through the Commission process. … At the very least, every one of the diverted streams listed in the 2001 IIFS petition should receive as much restored flow as possible to compensate for the lack of ecosystem management in the additional streams diverted by the EMI system,” he wrote.
Native Hawaiian Legal Corporation attorneys Summer Sylva and Camille Kalama, representing petitioners Na Moku Aupuni O Ko‘olau Hui, highlighted the injustice their client would continue to suffer if the Water Commission adopted Miike’s recommendations.
They pointed out that Na Moku filed its petition 16 years ago and in the meantime has had to fight through three contested case hearings before the commission and the state Board of Land and Natural Resources to remedy the harms they believe A&B’s diversions have inflicted on stream life and on Na Moku’s ability to perpetuate traditional and customary practices.
After all that waiting, Miike’s proposed decision essentially allows A&B/EMI to treat the streams as reservoirs, choosing to leave streams undiverted or decide on its own when increased diversions are needed to meet HC&S’s expanding irrigation requirements, they wrote. Hall raised a similar issue, as well. In fact, MTF and Na Moku joined in each others’ exceptions, which together totaled more than 100 pages.
“In speaking directly to petitioners — fifth and sixth generation East Maui taro farmers, fishers, and gatherers, all of whom were robbed of natural stream flows for over 140 years — the proposed decision orders them to ‘develop a system of reasonable sharing’ among themselves and ‘for [the] resuscitation of stream life’ with leftover flow amounts not required to meet HC&S’s expanding irrigation requirements,” Sylva and Kalama continued.
They argued that treating the streams as reservoirs for private, offstream use “offends the public trust and the spirit of the instream use protection scheme,” and warned that the Hawai‘i Supreme Court has repeatedly invalidated decisions where public trust duties were delegated to private entities.
The groups leveled a slew of other arguments against the proposed decision. Among other things, they reiterated their complaint that HC&S’s claimed water needs for its diversified agriculture plan were far too speculative to be deemed “reasonable and beneficial,” suggested that some of the recommended IIFS failed to meet minimum habitat requirements, and argued that the proposed decision improperly based its balancing analysis on the status quo, rather than on a scenario where the streams were undiverted.
Both MTF’s and Na Moku’s exceptions dedicated significant attention to Miike’s decision to delete an entire section on the public trust doctrine that was included in a previous iteration issued late last year.
“This literal abandonment of ‘the Public Trust Doctrine’ in its appropriate place evidences a change in attitude towards public trust beneficiaries — here, intstream uses and users,” Hall wrote. He then cited the Hawai‘i Supreme Court’s 2014 decision on the Kaua‘i Springs v. Planning Commission of the County of Kaua‘i case, which he said found that “private commercial use, including private commercial agricultural use, is not protected by the public trust.”
“The issue here is whether the protection of public trust stream resources can be jettisoned based upon speculative future offstream uses,” he wrote.
Both Hall and the NHLC attorneys stated that the proposed decision failed to apply a “higher level of scrutiny for private commercial uses,” as is required under the public trust doctrine, which is part of the state constitution.
“The overarching nature of the public trust doctrine is also significant because there was disagreement, throughout the contested case hearings, about whether cases dealing with water permits could be applicable to IIFS cases. In most instances, the cases were decided based upon public trust principles that are equally applicable to IIFS and water permit cases. The over- arching nature of the public trust doctrine is made clear by the Hawai‘i Supreme Court in Kaua‘i Springs.” In that case, the court found that the planning commission was obliged to determine whether or not zoning permits allowing a water bottling company to take water from a stream complied with the public trust doctrine.
The NHLC attorneys said Miike’s decision to delete the public trust doctrine section of his proposed decision was “inex- plicable” and made a point of reiterating all of its guiding principles. (The list included a principle Miike used to justify his proposed decision: “In requiring the Commission to establish instream flow standards at an early
planning stage, the [State Water] Code contemplates the designation of the standards based not only on scientifically proven facts, but also on future predictions, generalized assumptions, and policy judgments.”)
The Other Side
The Maui DWS had no exceptions. HC&S’s totaled all of three pages and merely posed a question and made one sug- gestion regarding the circumstances under which the contested case hearing would be deemed closed. Its opposition to Na Moku’s and MTF’s exceptions, however, were much more extensive.
The company didn’t refute MTF’s and Na Moku’s argument that under the proposed decision, a private entity would seemingly be allowed to use the streams as reservoirs. In fact, it seemed to agree: “It is anticipated that the diversions will only resume incrementally as implementation of the Diversified Agricultural Plan progresses, which could take years to reach full scale,” HC&S’s attorneys David Schulmeister and Elijah Yip wrote.
They pointed out that A&B has already agreed to restore water to all taro-feeding streams included in Na Moku’s petition and stressed that the diversions have already been “dramatically reduced” to about 20-25 mgd in the Wailoa Ditch at Maliko Gulch. Given that, “the familiar themes sounded in Na Moku/MT’s exceptions regarding the past ‘dewatering’ of these streams therefore ring hollow. … The full restoration of taro streams nullifies Na Moku’s/MT’s complaints that appurtenant rights are not adequately protected,” they wrote.
Regarding Na Moku’s and MTF’s complaints that Miike had given too much weight to HC&S’s “speculative” plans, which they argued were supported by scant evidence, Schulmeister and Yip reiterated their position that such an approach is not only legal, but in this case, warranted.
“The purpose of this proceeding is to set IIFS. Unlike a proceeding for decision-making on Water Use Permit Applications” — which the Water Commission requires for designated water management areas — “this proceeding does not call upon CWRM to allocate specific quantities of water to any particular user. Thus, it is improper for Na Moku and MT to characterize the proposed decision as ‘allocating’ water and attempt to apply standards in a WUPA proceeding to this IIFS proceeding.” (The East Maui watershed is not a designated water man- agement area.)
They argued that the Water Commis- sion need only establish IIFS that “protect instream values to the extent practicable” and “protect the public interest,” which it can do by “forecasting water needs for future offstream uses.” They then cited the Water Code, which states that when considering a petition to adopt an IIFS, the commission must weigh “the importance of the present or potential instream values with the importance of the present or potential uses of water for noninstream purposes, including the economic impact of restricting such uses … (emphasis added).”
Holding future offstream uses to the “exacting evidentiary standard” sought by Na Moku and MTF “would render the Diversified Agricultural Plan stillborn, terminating its viability before it is given a realistic opportunity to be implemented,” they wrote.
“A&B is not presently asking CWRM to determine its entitlement to withdraw a specified amount of water from the subject streams; it is simply requesting that CWRM consider the water requirements of the Diversified Agricultural Plan in the balancing analysis so that enough water will be available for diversion when the plan is operational,” they concluded. (Given that the East Maui watershed is not a designated water management area, it’s unclear when the commission would ever allocate to the company a set amount of water to be withdrawn.)
Both Na Moku and MTF took issue with the county’s claimed water needs for the Upcountry area. Based on the Department of Water Supply’s filings, Miike estimated its needs to be about 16 mgd and recommended IIFS be set to accommodate almost all of that. MTF argued that the department had ample alternative sources that vastly reduced its stream water requirement. Na Moku had a problem with the fact that Miike had simply set MDWS’s water needs equivalent to the amount available under agreements with EMI. Maui corporation counsel, representing the DWS, wrote in their opposition to the exceptions. Given Na Moku’s concern, the department stated that it would not object to adjusting Miike’s findings to “reflect demonstrated needs rather than capacities. … This would amount to the present use of 7.1 mgd from the Wailoa Ditch, an additional need for 1.65 mgd based on population growth through 2030, and the 7.5 mgd additional demand represented by the Upcountry Water Meter Priority List, for a total of 16.25 mgd.”
With regard to MTF’s arguments regarding alternative sources, the county noted, “The sources identified by Maui Tomorrow are not alternative sources, but are sources that already exist and, as recognized by the hearings officer, are already being used in some capacity. Water that is already being used cannot, somehow, be used again to address future needs.” It added, “[C]oncerns that actual needs are being over estimated are immaterial: if MDWS needs less water, it will take less water.”
— Teresa Dawson