The recommendation was Part II of the commission’s effort to address a June 2001 petition filed by the Native Hawaiian Legal Corporation on behalf of East Maui taro farmers Beatrice Kekahuna, Marjorie Wallett, Elizabeth Lapenia, and a group known as Na Moku `Aupuni O Ko`olau Hui. The farmers argued that the East Maui Irrigation System, owned and operated by Alexander & Baldwin’s East Maui Irrigation Co., robbed them of water that they need to grow taro and to which they are entitled, and so they petitioned the commission to amend the IIFS of 27 East Maui streams. The irrigation system, which takes an average of about 160 million gallons of water a day from various stream diversions located mostly on state land, has dewatered East Maui for more than a century under various state water licenses, the last of which expired in the 1980s. Faced in 2001 with a request by A&B to secure yet another long-term water lease for East Maui, the area’s taro farmers, as well as the environmental group Maui Tomorrow, decided to push to regain the water needed for taro and for a healthy stream ecosystem.
In September 2008, the Water Commission addressed eight streams listed in the NHLC petition. The commission voted to maintain the status quo for Pi`ina`au and Kulani streams and to restore a total of about 12 mgd to Honopou, Hanehoi, Huelo, Palahulu, Waikamilo, and Wailuanui streams. Commission staff based the amounts largely on habitat needs and delved little into the water requirements for taro. Water commissioner Lawrence Miike explained at the time that the new interim standards were merely a jumping-off point and over the next year, the farmers and the state would have a chance to better quantify those needs.
More than a year later, the Water Commission staff recommended, for the most part, that the status quo be maintained for the remaining 19 streams. But faced with NHLC’s claims that Hawaiian Commercial and Sugar was wasting water, and testimony against the recommendation from the state Department of Land and Natural Resources’ Division of Aquatic Resources, among other things, the commission found that it could not proceed without more information. It deferred taking action and directed its staff, the Maui Department of Water Supply, HC&S, and NHLC’s clients to return to the commission this month with better data to craft short, mid-term, and long-term restoration plans.
In its report to the commission, the main reason why staff recommended maintaining the status quo for most of the streams was because they generally gained groundwater along most of their courses, and the amount they gained was “believed to be sufficient to support instream uses.” The report also discussed at length the importance of the diversions to the island’s domestic water supply, agricultural industry, tourism, and residents.
Hawaiian Commercial & Sugar manager Christopher Benjamin commended the staff for a “very thorough analysis.” But the recommendations, and the analysis behind them, did not sit well with NHLC’s Alan Murakami. In his 10-page critique of the staff’s report, Murakami pointed out that the recommendation fails to analyze the impacts on or take steps to protect traditional and customary practices in accordance with the Hawai`i Supreme Court’s decision 2000 decision in the Kapa`akai v. LUC case.
The staff submittal “relegates its analysis of traditional and customary practices to a mere two sentences, acknowledging NHLC submissions, but reacting by deeming that no taro growing exists along 18 of 19 streams. In the case of Makapipi, it acknowledges a claim of taro growing but discounts that it currently exists. The current nonexistence of taro growing says nothing about the past practices, or the potential to restore such practices in the future, which the commission must consider. There is no mention of traditional and customary practices, or the effects of continued diversions from these 19 streams on these practices, in complete disregard of the 22 declarations submitted by cultural practitioners at the April 10, 2008 CWRM Public Fact Gathering Meeting,” he wrote.
Murakami also restated an argument he has made over the years regarding who bears the burden of proving the diversions have an adverse impact on the rights of others. He complained that staff gives far too much weight to the impacts stream restoration may have on private commercial interests when it should instead be investigating the impacts diversion has had on his clients.
“Na Moku, et al., need not, at this point, establish their entitlement to water from the diverted streams or that those entitlements are or will be adversely impacted by the proposed diversions. It has already filed declarations meeting the threshold requirement to alert the CWRM that traditions and customs exist or would continue or be re-established, were it not for the EMI diversions. Under the applicable common law to justify any diversion, A&B and/or the State of Hawai`i must first identify the universe of rights potentially affected by the proposed action. Robinson [v. Ariyoshi] makes clear that before any proposed transfer of water outside the watershed of origin, whether for an hour, a day, a week, a month, or thirty years, may be authorized, ‘those seeking the transfer’ must demonstrate that the ‘transfer of water [i]s not injurious to the rights of others.’….
“Certainly, A&B must not be allowed to continue to avoid and escape the consequences of the same law that it previously successfully relied upon to prevent out-of-watershed diversions from Wailuku River,” he wrote, referring to a 1904 case granting HC&S an injunction against Wailuku Sugar Company, which prevented the latter from diverting water from Wailuku Stream during certain times and from certain ditches.
Murakami asked that, as a minimum, the commission require A&B to “return a sufficient amount of water to streams to restore habitats to support the cultural practices of my clients and others.”
In his testimony, Dan Polhemus, administrator for the DLNR’s Division of Aquatic Resources, also recommended that the commission do more to improve stream habitat. Maintaining the status quo for all but one of the 19 streams was unacceptable, he wrote, and he recommended that flow be returned to eight of those streams. Instead of recommending a specific amount of water, DAR recommended that diversion structures on Honomanu, Puohokamoa, Waikamoi, Kopili`ula, East Wailua Iki, West Wailua Iki, Makapipi, and Hanawi streams be modified to provide for animal passage and/or suitable habitat. Those modifications would restore 45.8 kilometers of native species habitat units out of a total of 67.3 kilometers currently lost as a result of the irrigation ditch’s major diversions.
“They therefore represent a significant return of ecological function based on a modest investment in flow restoration, and we urge their favorable consideration,” Polhemus wrote.
The Morning After
After an entire day of emotional testimony from more than 200 people, the commission took a break and reconvened the next morning. In an attempt to tackle all of the complex issues the testifiers had raised, commission chair and DLNR director Laura Thielen proposed framing the commission’s discussion in terms of short-term, mid-term, and long-term goals.
“In retrospect, we were asking too much of staff is to take information and look at the law to come up with a recommendation. The information on the streams is excellent. The other side, the uses, is not quite sufficient yet,” commissioner Miike said.
In response to a question by commissioner Neal Fujiwara about whether the staff used the same process to draft recommendations for the first eight streams and the 19 remaining streams, Ken Kawahara, the commission’s executive director, said he didn’t think the process was different, but the information used was. For the first eight streams, he said, there were 30 registered taro diversions. For the 19, there was only one.
“That’s not to say there couldn’t be restoration in the future,” he said, adding that staff had sought public input on that kind of information.
The commission took about two hours prying more information from HC&S, the DWS, and NHLC’s Murakami on their water needs.
“If we find that out of 177 mgd that is diverted, 150 mgd is needed while 27 is put back, there is no economic impact on offstream uses. By policy, the commission should not ascribe economic impact to inefficiently used water. If we put 40 back, then we begin cut into reasonable uses and that’s where we would have to assess economic impact,” Miike explained.
Commissioner William Balfour worried that there wouldn’t be enough water for offstream use — domestic use, in particular — in dry periods.
“If we talk about putting water back into the stream. we’re already doing 12 mgd plus or minus…on the first eight streams. Say 12 mgd is a good number. On a very, very poor day on the stream, that’s the whole ball of wax, there’s nothing left. Domestic water for you and I, it’s awful important, folks…Who’s the most important person on the earth? We are,” he said.
HC&S’s Rick Volner shared Balfour’s concerns about the dry season and Benjamin, the HC&S manager, asked whether any amended IIFS could be adjusted seasonally.
Volner said that for the 30,000 acres of sugarcane watered by the EMI system, about 204 mgd are needed when evapotranspiration is figured in. If the system diverts 166 mgd on average and the needs are 204 mgd, “that’s already a deficit,” he said. (Groundwater has been used in the past to supplement the company’s needs and has recently provided nearly 50 percent.)
A representative from the Maui Department of Water Supply testified that its upcountry users, which rely on the diversions, require about 6 mgd in the winter and up to 10 mgd in the summer.
With regard to the amount of water required to improve stream habitat to the level DAR had suggested, Polhemus did not offer any figures, but basically said any improvement would be better than the status quo. He added that his division does have the tools to calculate the amounts needed.
Murakami didn’t offer any numbers either, but had some questions of his own about the actual amount being diverted. He noted Balfour’s claims of a low of 12 mgd and a high of 450 mgd.
“I’ve heard 21 mgd and 317 mgd. Which is it? I hear HC&S saying the latter,’” he said, adding, “In low periods, why can’t groundwater be used more heavily?”
Murakami did say that DAR’s proposal didn’t seem unreasonable, but that until he saw how it worked and translated to water on the ground, it was difficult to respond to it. “As a concept, it doesn’t sound like a bad short-term solution. I want to see water as soon as possible in any form,” he said.
After a short break, Thielen read a possible motion she had drafted, which Miike then offered as his own: Defer the action on the staff’s recommendation and direct it to investigate short-term, mid-term, and long-term solutions to the petition.
With regard to the short-term, Miike directed staff to return in March with a recommendation on the possibility of implementing season-dependent restoration. Staff would work with the interested parties to identify minimum offstream needs in both wet and dry seasons, and to determine the maximum restoration value of each stream based on its hydrology, habitat, and the ability of the diversion infrastructure to be altered. Staff would also work with the DAR to identify which of the diversions are capable of being altered to increase recruitment of stream organisms and to prevent their entrainment.
For the mid-term goals, Miike requested that, by March, the Maui Department of Water Supply present a timetable, cost, and funding sources for distribution system repairs. HC&S was asked to present information on alternative water sources and data on its groundwater wells, including their capacity, pumping costs, and sustainable pumping levels. NHLC was asked for information on possible new lo`i development or expansion, including acreage, a timetable, and costs.
Finally, to address concerns about changes in water use over the long term, Miike directed the DWS to return in March with information about how it plans to reduce its reliance on surface water. HC&S was directed to present its ideas and cost, time, and location details for alternative longer-term sources.
The commission unanimously approved Miike’s motion.
While the commissioners clearly appreciated DAR’s testimony, chair Thielen was apparently displeased that it was submitted at the last minute. According to a February 2010 Hawai`i Fishing News article, “DLNR: Department of Lies, Nonsense and Ridicule,” by environmental activist Carroll Cox, Thielen suspended Polhemus after the December meeting.
Cox wrote that DAR had surveyed the 19 streams and submitted detailed reports in November on their biology and restoration needs, assuming CWRM staff’s recommendations would follow the model used for the first eight streams.
Cox reported, “Despite repeated requests for meetings made to both CWRM staff and the deputy chairperson in charge of CWRM, development of the CWRM plan for the remaining 19 streams proceeded without inclusion of DAR’s comments or input. And, the DAR was not allowed to review or comment on the plan submitted by CWRM prior to its official posting.”
Polhemus told Environment Hawai`i that his division got a copy of CWRM’s proposal a few days before the meeting and had a mere 36 hours to prepare its own recommendations.
Cox reported that after the meeting, Thielen gave Polhemus a letter charging him with “dereliction of duty” and not meeting his employment goals, and suspended him without pay for 10 days, beginning December 28, 2009.
“One of the stated reasons was that he failed to provide stream studies and additional information to CWRM staff for in-stream flow standard development,” Cox wrote.
Polhemus confirmed that Thielen gave him a 10-day suspension.
“The charge was poor communication,” he said. (No one from CWRM received a similar charge.)
“The first time around, we worked really closely with CWRM,” he said, but that was in better times, when the staff still had a survey branch and other key positions. But with the furloughs and the loss of the survey branch, the collaboration the second time around wasn’t as close.
“There were reasons on both sides,” he said. “At the end, we were not given a chance to review the submittal [before it was completed].”
“We looked at it and essentially it was a ‘no action’ alternative,” he continued. Given the fact that Alexander & Baldwin was seeking a 30-year lease, no action on those streams would mean another 30 years of dewatering, which didn’t comport with DAR’s mission to protect aquatic life, he said.
Since the commission’s December meeting, DAR and CWRM staff have been meeting, and, Polhemus said, his own staff has been working diligently to meet the commission’s requests.
The division has incorporated seasonality into its modeling and created a GIS-based model of available habitat in environments, which will start to look at water needs from the bottom of the stream up.
“If the bottom is dry, it doesn’t get you much,” he said.
As of press time, the March Water Commission meeting had not been scheduled. Polhemus said the fact that the Legislature is in session could delay things.
With regard to the status of the eight streams the commission already dealt with, Polhemus said he and his staff have looked at what’s been happening with implementation, which seems to be “meeting with variable success.”
He said Wailuanui Stream seems to be working well biologically and culturally. Hanehoi is doing well culturally, but not so much biologically, and Honopou still has low base flows.
“Things are still not where we need to be on that system,” he said. “Overall, Wailuanui is the most successful to date due to its underlying geology.”
Murakami has a different take. In an email he writes that the commission staff’s performance on the first eight streams “leaves a lot to be desired.”
“Yes, it is understaffed and under resourced, but it doesn’t help our clients when they complain about lack of water (as in Honopou) to grow taro and nothing gets done for over a year. Bottom line: the staff does not follow up on these complaints,” he writes.
He adds that his office is working with the Wailuanui and Nahiku communities to get them to submit information on their potential restoration of old lo`i, and gathering and fishing practices. “It’s daunting work, which is really the burden of the CWRM to do.”
CWRM’s Dean Uyeno agreed that his staff needs to address Honopou and said it is working with the USGS to determine flows in that stream. However, he said, once those measurements are done, restoration won’t be a simple fix, since, unlike some of the other streams that just require a gate to be opened, Honopou will require a hole to be cut into concrete.
In late January, Alexander & Baldwin’s board of directors issued a statement that HC&S would continue to operate through the end of the year. HC&S’s Benjamin said in a press release that the company’s viability “depends largely on improving sugar yields, and water is the single biggest prerequisite to doing so. Further clarity regarding HC&S’s future remains dependent on both the East and West Maui water decisions,” referring to the NHLC case and a contested case hearing before the commission dealing with four West Maui streams known collectively as Na Wai `Eha.
Earthjustice attorney Isaac Moriwake, who represents the parties seeking stream restoration in that case, complained to The Maui Newsthat A&B’s announcement was an “outrageous” attempt to politicize the cases. “We’re just trying to enforce the law and right a century-old wrong,” he was quoted as saying.
For Further Reading
Environment Hawai`i has given extensive coverage to East Maui water issues over the years. For more background, see the following, all of which are available on our website:
- “Water Commission Amends Standards for Six Diverted East Maui Streams,” and “Land Board Resumes Discussion of Diversion of East Maui Water,” November 2008;
- ”Land Board Orders EMI to Release Water to Meet Needs of East Maui Taro Farmers,” May 2007;
- ”Ex-Judge Says East Maui Farmers Don’t Need More Water for Taro,” August 2006;
- ”Board Talk: Land Board Favors EMI Water Diversion,” March 2003;
- ”Board Talk: East Maui Water Dispute Heats Up with Hearing Officer’s Recommendation,” January 2003;
- ”Board Talk: Contested Case on Renewal of EMI Water Permits,” July 2001;
- ”Battle Looms Over Waters Diverted from East Maui Streams” and “Complex Legal Issues Surround A&B’s Taking of East Maui Water,” August 1977.