If the state Board of Land and Natural Resources grants permission to one entity to divert water from a stream for a particular use, can that diverted water then be used for other things by other entities that don’t have a board permit? Alexander & Baldwin, Inc. and its East Maui Irrigation Company, for example, have permits from the Land Board to divert East Maui streams and they provide some of that water to the Maui Department of Water Supply for municipal use.
However, in the case of Grove Farm using — and getting paid to transmit to the Kaua`i Department of Water’s (KDOW) system — water diverted from the North Fork of the Wailua River under a permit granted to the Kaua`i Island Utility Cooperative (KIUC), the community group Kia`i Wai O Wai`ale`ale has argued that shouldn’t be allowed unless Grove Farm also has a permit.
On April 23, the group’s attorney, Linda Paul, filed a complaint in 5th Circuit Court seeking to invalidate an environmental assessment prepared for the department’s Kapaia Cane Haul Road water main project. Among other things, the group asked that the court declare that water resources that are “necessary and subject to the proposed action are unlawfully being consumed outside of a BLNR water lease or revocable permit.”
From the discussion by Land Board members last December about whether or not Grove Farm also needed a water use permit, it seemed like most of them didn’t think so, at least not for water from the Blue Hole diversion used by KIUC. Whether Circuit Judge Kathleen Watanabe agrees remains to be seen.
Should she find in Kia`i Wai O Wai`ale`ale’s favor, the 1.7-mile, $3 million project would be on hold “until compliance with all applicable laws is achieved,” the complaint states.
Opposition to KIUC’s use of water from the North Fork via the Blue Hole diversion goes back at least to December 2004, when the utility sought a 65-year lease so that it would have a secure source of water for its hydropower plants. The Office of Hawaiian Affairs challenged the utility’s claim that it was a non-consumptive use and requested a contested case hearing.
““Based on information from the staff submittal … we understand that the water is diverted from the North Fork of the Wailua River [from Wai`ale`ale and Waikoko streams, specifically], run through the hydro power plants, and run into the South Fork. If that is the case, then the diversion clearly affects the amount of water in ‘the stream,’ in this case the North Fork of the Wailua River. Hence, the use would be consumptive under law,” wrote then-OHA director Clyde Namu`o in a letter to then-board chair Peter Young.
“In light of the fact that the sale of this lease will enable a major diversion of some of Hawai‘i’s most significant streams for the next 65 years, it would seem clear that this kind of project is precisely the kind of activity that the [state’s environmental review] law was intended to encompass,” Namu‘o continued.
To avoid a contested case hearing, KIUC entered into a memorandum of agreement with OHA: KIUC agreed it would submit a cultural impact assessment and stream biota study to OHA for review and approval.
Fast forward to December 2017: After hours of public testimony, the Land Board narrowly voted (4-3) to renew a one-year holdover permit to KIUC for its use of water from the Blue Hole diversion. Before the vote, a representative from Kia`i asked for a contested case hearing, which the board denied after discussing the matter in executive session.
The group, as well as several other Kaua`i residents who had flown to the board’s meeting in Honolulu to testify, argued that the diversion left about a quarter mile stretch of the stream dry, depriving fauna of habitat and native Hawaiians of their ability to fully exercise their traditional and customary rights. It should be noted that a year earlier, vandals blocked the Blue Hole diversion with rocks and lowered a spillway to redirect flows back into the stream.
Even so, kuleana landowner and Kaua`i taro farmer Debbie Jackson told the board that by allowing the diversion to continue, “You violate my rights as a beneficiary. … You violate your fiduciary responsibility by not protecting natural resources … severing my ohana’s ability to practice. You violate the public trust doctrine. … I am personally negatively affected — spiritually, physically — by the taking of 100 percent of these waters. … I order you to stop.”
Bridget Hammerquist of Kia`i O Wai`ale`ale testified that Grove Farm takes the water diverted by KIUC into its Waiahi Surface Water Treatment Plant and gets paid $2 million a year to deliver about 2-3 million gallons a day to the county. (The plant receives water from the Blue Hole diversion, as well as several other streams located on Grove Farm lands, via the Kapaia Reservoir.)
“Are you suggesting Grove Farm has to get a permit?” asked board member Stanley Roehrig.
“Yes … since 2004,” she replied.
Roehrig asked Linda Chow, the deputy attorney general advising the Land Board, whether the state was entitled to the income from the transmission of water across private property and sale to the county.
“No. Because they’re not selling the water. They’re selling the cost of transmission,” she replied.
Representatives from the Commission on Water Resource Management informed the Land Board that it was in the process of doing an instream flow standard assessment for the streams that feed into the Wailua River. If and when the Water Commission revises the interim instream flow standards (IIFS) of any or all of the streams covered in the assessment, it will no doubt seek to meet the Department of Hawaiian Home Land’s water needs and ensure mauka-to-makai connectivity to benefit any native amphidromous stream organisms.
“We are looking to develop IIFS for the section below Blue Hole diversion,” reported CWRM stream protection branch head Dean Uyeno. “Typically we would look at the watershed as a whole. We do have a USGS study of southeast Kauai. We’re waiting for that study. Typically we would wait ‘till it’s done, but Ayron [Strauch, also with CWRM] has done some stream work to determine flows,” he said.
“Your investigation includes whether or not there should be a partial diversion?” Roehrig asked Strauch.
“It’s to assess all instream uses. If there’s no water, obviously uses are impacted,” Strauch said.
Given that the Water Commission was preparing to propose flow standards for the affected streams, Kaua`i board member Tommy Oi moved to approve KIUC’s permit.
Board member Chris Yuen seconded the motion with conditions. One was that within one year, he wanted to see a proposal brought to the board for partial restoration of flows to the North Fork of Wailua River, especially if no new IIFS were adopted by then.
“The diversion has gone on a long time. I don’t think we can come up with numbers on the fly. I do sympathize with having some basic restoration to the stream,” he said.
Board members Roehrig, Keone Downing, and James Gomes, however, said they thought KIUC had had more than enough time to restore streamflow voluntarily.
“I probably agree with a lot of what you said,” Downing told Yuen. “I’m still going to be voting no. People gotta look at being proactive, not reactive. If a stream was meant to be dry it wouldn’t be a stream,” he said.
“I’m also voting no. I do believe those streams were utilized by our kupunas. … I think it’s been going on long enough,” Gomes added.
In April, shortly before Kia`i filed its complaint, the commission issued its instream flow standard assessment for the Wailua River. In it, the authors state, “One diversion that was restricting recruitment [of stream organisms] was the Blue Hole intake on the West Branch of the North Fork. However, damage from vandalism and the current operators management has resulted in continuous flow over the dam since the fall of 2016.”
Kia`i did not fight the Land Board’s decision in court after being denied a contested case hearing. It did, however, take up the fight over all of the stream diversions that feed into the Waiahi treatment plant, which is the county’s primary source of water to Lihu`e. The environmental assessment for the Kapaia water main project provided the hook for the action.
On paper, the project seems almost mundane: According to its environmental assessment, a section of the KDOW’s water main is too narrow, causing flow rate and pressure limits to be exceeded. To bring them down to acceptable levels, the department wants to add a “relief line,” about two inches wider, that will run along that section and be connected at both ends, forming a loop. The second line will also provide badly needed redundancy, ensuring that critical facilities such as the Wilcox Medical Center and Wilcox Elementary School would continue to receive potable water in the case of a line break, the EA states.
Because the new line would serve Grove Farm’s development needs, as well as the county’s, the company is footing a third of the line’s construction costs.
The finding of no significant impact was published by the Office of Environmental Quality Control on March 23.
One of the problems, Kia`i states in its complaint, is that KDOW approved the project, which uses state lands and water, “even though neither Grove Farm or its subsidiaries, nor KDOW holds a water lease or revocable permit from the (BLNR) authorizing their use of southeast Kaua‘i’s freshwater resources.”
“The Waiahi SWTP obtains water from the Kapaia reservoir, into which flows waters from at least the Hanama‘ulu stream, amongst other freshwater resources,” the complaint states, adding that the water provides for residential, public, commercial, industrial, and resort uses.
Native Hawaiian members of Kia`i have suffered as a result, the complaint argues. “Diversion and reduction in natural flows to the Wailua stream complex has left Native Hawaiian members’ auwai dry. Water must be trucked in … at some affected areas. … Plaintiffs seek a declaratory judgment stating that plaintiffs’ Native Hawaiian members’ constitutional rights to native Hawaiian traditional and customary practices have been violated by defendants’ conduct,” it states.
The complaint, referencing the Hawai`i Supreme Court’s Kaua`i Springs decision, also points out that the county has “an affirmative duty to conserve and protect Hawai`i’s public trust resources, including Kaua‘i’s threatened and endangered species and its freshwater resources.”
“The waters of Wai`ale`ale are an essential component of the habitat of several threatened species including the highly endangered endemic Newcomb’s snail, the endemic wetland birds `alae`ula (moorhen) and `alae ke`oke`o (coot), and the native Hawaiian stream gobies (o`opu),” it states, adding that the group wants a declaratory judgment that the county violated its obligations as a public trustee by failing to conduct an EA in compliance with state laws.
What’s more, Kia`i argues that the relief line will foster increased water use, despite the fact that the EA claims that it won’t increase the system’s capacity. And the group bases a number of its arguments on the belief that the line is actually a segment of a larger community development plan prepared by Grove Farm decades ago.
“The [final EA] stated that the project would not result in the loss of any natural resources because the existing volume of water output from certain wells and the Waiahi SWTP would not increase, but did not comment on known future increased water output under the Lihu`e Development Plan,” it states. This, despite the fact that “KDOW acknowledged that the project is required to provide transmission facilities for the Grove Farm Lihu`e Development Plan’s master planned community,” it added.
Viewed in that light, the group argues, the EA “did not identify potential impacts, evaluate the potential significance of each impact, or provide for detailed study of significant impacts on Southeast Kaua‘i’s surface or ground natural freshwater resources, nor any of the potential direct, secondary, indirect, or cumulative impacts of increased consumption of those resources.” Given that, Kia`i is seeking an order declaring that the EA was “impermissibly segmented and is therefore invalid.”
With regard to the need to bring the water system into compliance with flow rate and pressure limits, Kia`i argues that reasonable alternatives to the relief line, “such as the installation of appurtenant hydraulic fixtures, including pressure relief valves or pressure reduction valves,” weren’t considered.
— Teresa Dawson
For Further Reading
- “Hawaiians, Conservationists Challenge Diversions of Streams in East Kaua`i,”January 2005;
- “Letters (Kaua`i Water: Another View),” April 2005;
- “Board Talk (East Kaua‘i Diversion),” September 2005.