Environment Hawai`i Questions Miike on Dissent in Na Wai `Eha Decision

posted in: July 2010, Water | 0

imageFormer state Department of Health director Lawrence Miike, a physician and a lawyer, is the longest-serving member of the state Commission on Water Resource Management and was the lone dissenter in the commission’s recent decisions to amend the interim instream flow standards for about two dozen diverted streams in East and West Maui. In our cover story, we report on his dissenting opinion in the Na Wai `Eha contested case. Here, we delve further into his thoughts on how things went down and how they’re likely to play out.

Since the Na Wai `Eha decision came out, several people, including you, have pointed out how the commission’s decisions for interim instream flow standards (IIFS) in both the East and West Maui cases seem to conflict with or fall short of requirements established by the Waiahole case. Do you think a briefing on the Waiahole decisions would have helped inform the commission’s decisions and/or the staff’s recommendations?

I essentially wrote everything in the decision except for the Decision and Order on the IIFS, where the majority substantially deviated from what I read as what the law required. If you read the beginning of the Conclusions of Law section, you will see that I summarized what the Waiahole decision required us to do — and what I summarized in my dissent — but the majority was uninterested in following what the court said in Waiahole. So I think the majority will be reversed on appeal — maybe not exactly along the lines I summarized in my dissent, but I am certain the decision will be reversed.

As for the staff, you may recall that in our first meeting on the East Maui hearings, I said that it was unfair/unrealistic for the staff to be tasked with what the law required, and that the best we should hope from them is that they just give us the data. Even though their analyses of the individual streams were quite different, in every case, they concluded that the weight of the evidence fell heavily on the side of offstream uses. That was unacceptable to me and I said so.

As for the balancing test that should have been done in setting the IIFS (instream values versus offstream uses, including the economic impact on offstream uses), when I asked the staff why there was nothing at the May 25th meeting on HC&S’s and the other users’ requirements, one of the staff told me that they were directed not to include that in the last submittal. So all the staff presented was the restoration potential data. (And note that they were also directed to provide alternatives to the 90 percent of habitat data — namely, 50 percent and 70 percent of habitat; the staff at least had the gumption to say that those numbers were meaningless, and that the MINIMUM restoration was represented by the 90 percent numbers.) And that is why I questioned HC&S on what they claimed were their requirements — and I estimated that they were overestimating their requirements by at least 30 percent.

As an example, the HC&S representative at the last Maui meeting, when challenged by me on 10 percent of their 30,000 acres not being irrigated (comparable to the 10 percent non-irrigated figure that was definitely proven at the Na Wai `Eha hearings on those 5300 acres), suddenly came up with a new number of 42,000 acres instead of a total of 35,000 acres — the number they had been using up to that moment.

The Waiahole decisions required that private commercial users had the burden to overcome a presumption in favor of stream restoration (preservation/restoration of the resource, a public trust purpose), but the majority was uninterested in even considering that burden. So that is one of the areas in which I believe their decision will be reversed. Note also that, in the Na Wai `Eha area, when the water use permit applications are considered, what HC&S decided to provide in the contested case on setting the IIFS standards will not be sufficient to meet their burden of proving that their uses are reasonable and beneficial.

The commission considered system losses in determining reasonable uses and in setting the IIFS for Na Wai `Eha, but didn’t when determining the IIFS for East Maui streams. Why the different approaches? Are the general conditions the commission adopted incentive enough to force HC&S and Maui County to minimize system losses in East Maui? Do you think the habitat needs of East Maui streams can be adequately met if the county and/or HC&S reduced system losses to an acceptable level and HC&S used its water more efficiently?

On your second question, yes, the commission should have considered losses in the East Maui case, but they chose not to factor that into their decision, because, as I explained above, they were not interested in doing the balancing test between instream values and offstream uses, and only considered what absolute minimum they would put back into the streams. Note that by HC&S’s own data, they measure an average of about 167 mgd a day from the East Maui streams and of that amount, 23 to 31 mgd are lost through their reservoirs, plus unknown amounts lost through the ditches. So in effect, the majority let HC&S continue to lose those amounts, which could have easily been restored to the streams without affecting HC&S (except for the costs and logistics of preventing those losses), but the majority did not require HC&S to address their losses. (Note that, while HC&S complained that there was not enough water for their uses even under present total diversion conditions, they have not made any serious efforts to address their substantial system losses.)

Instead, the majority chose to restore only about 9.26 mgd to six streams for half of the year, in amounts that reflect the minimum flow to maintain MINIMUM viable habitat for stream animals. For the other half of the year, the majority reduced the total amount to about 1.11 mgd, amounts that only allow stream animals to exist in shallow pools without major growth and reproduction. (The commission also added about 5 mgd when it addressed the first 8-9 streams in September 2008.)

The difference between Na Wai `Eha and East Maui is that the former was in a contested case and I documented all the relevant findings of fact in the Decision and Order that I drafted, and the majority could not practically remove that information, because my proposed Decision and Order had been publicly released.

In the Na Wai `Eha decision, the commission seemed to prefer the public hearing process over the contested-case hearing process in setting IIFS. What are your thoughts on the pros and cons of each approach? Do you have a preference?

On your last question, my answer would be “depends.” With the present majority, I would prefer the contested case approach, because everything has to be put on the public record and nothing can be conveniently left out. If the commission would follow the law, then I would prefer not having a contested case, because the process is very tedious and adversarial and takes years for final resolution through the appeals process. An upcoming issue is the petitioners asking for a contested-case hearing at the conclusion of the East Maui decision meeting. The attorney general’s office is of the opinion that there is no right to a contested-case hearing on amending the IIFS, because it is an administrative proceeding, similar to establishing the sustainable yield for aquifers.

Their citation would be to the first Waiahole case, where the court stated that establishing the IIFS was akin to establishing the sustainable yield. However, I would argue that all the court meant was that both the IIFS and sustainable yield establish how much water would be available for offstream uses or to be pumped out of the aquifer. In establishing the IIFS, the commission has to weigh competing interests, an issue that is not present in setting the sustainable yield. So if the commission does not allow a contested case on the East Maui decision, then parties at interest have no recourse to appeal the decision. This would not only apply to the parties who want the streams restored and the taro farmers who want water, but also to the Upcountry farmers and HC&S.

If the attorney general advises the commission not to allow the parties into a contested-case hearing and the commission agrees, I am sure on appeal that that decision will also be reversed.

Finally, the reason why there was a contested case in Na Wai `Eha was that there were also ground-water permits being considered, and there is an undisputed direct relationship between ground and surface waters in that area. The attorney general had advised against consolidating the permits with the petition to amend the IIFS, but the commission at that time (Chiyome Fukino and I are the only current members who were on the commission at that time) did not listen to the attorney general and consolidated the permit applications and petition to amend the IIFS into a contested-case hearing.

Incidentally, Na Wai `Eha is now a surface water management area, so all reasonable and beneficial amounts of existing uses are eligible for existing use water permits. East Maui, however, is not a designated management area, and the common law applies there. I have argued that neither the state nor other landowners in East Maui have the right to transport water out of the area, and neither does HC&S have the right to use it. But HC&S can use it, as long as rights-holders (riparian and appurtenant rights) don’t want to use the water. The state and other landowners in East Maui may have such rights, but those rights are only to use the stream waters on their riparian and appurtenant lands, and do not extend to a right to transport water out of the area. On HC&S, even if their uses are reasonable, rights-holders have first call.

Furthermore, in addition to riparian and appurtenant rights, the court has said in the cases on traditional and customary rights that state agencies have to accommodate those rights in their decision-making processes, so gathering of stream life would also take precedence to HC&S transporting the water elsewhere. The East Maui petitioners should have sued the state and HC&S directly, on the basis that they had rights that were being denied by the state and HC&S, whether or not the offstream uses were reasonable. Instead, they chose to seek to amend the IIFS and indirectly, to restore water to some of the taro farmers. The petitioners could still follow that parallel course even as they have asked for a contested case on the commission’s decision on amending the IIFS.


— Teresa Dawson


Volume 21, Number 1 July 2010


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