On June 16, the Commission on Water Resource Management granted Wailuku Water Company’s (WWC) request for a contested case hearing on allegations that it dumped water diverted by its Waihe‘e ditch into a dry stream bed over 16 days between September 2019 and January of this year.
In February, staff had recommended that the commission find the company guilty of a waste violation based on evidence provided in a complaint filed by the community group Hui o Na Wai Eha. Staff had also recommended fining the company $24,500, directing it to improve communications with its water customers, develop a management plan to address excess supply, seal the release gate where the water was allegedly being dumped from, and make other system repairs.
While a handful of Hui members flew from Maui to Honolulu to testify in support of the recommendations, WWC president Avery Chumbley requested a contested case hearing before any members of the public could testify.
In its petition, WWC contested the waste allegations, as well as the commission’s ability to order system repairs and improvements and the development of a management plan.
In addition, the company noted that it had informed commission staff during its investigation last November that diversion structures had been vandalized. Commission staff suggested that the company report it to the police.
“From review of the [February staff] report, WWC learned that the commission staff had received information from the complainant [the Hui] … to which information WWC had not been given an opportunity to respond. … Further review of the report made clear that the commission staff did not include information about the vandalism that occurred, and continues to occur, to the diversion and control structures, which would have an impact on the claims of unlawful waste,” the petition states.
With regard to the Water Commission staff’s February recommendations regarding system improvements, the petition states that as a regulated public utility, WWC cannot borrow funds to improve the ditch system, purchase equipment, or change water delivery rates without approval from the Public Utilities Commission.
At the Water Commission’s meeting June, where staff recommended granting the contested case hearing and authorizing the commission’s chair to appoint a hearing officer, Hui president Hokuao Pellegrino and the group’s attorney, Earthjustice’s Isaac Moriwake, asked for clarification on what, exactly, the hearing would be about, since the commission was preempted from taking action in February. They both asked that the commission deny the contested case hearing request and first “flesh out” what the case would cover.
To Water Commission member Keith Kawaoka, representing the Department of Health, Moriwake posited, “Imagine if a violator preempted the DOH inves- tigation process by requesting a contested case before an NOV [notice of violation] is even issued.”
“Who are the necessary parties? … Why isn’t the Hui made a lead party?” Moriwake asked, noting that the group was not mentioned in the staff report.
“This is just a free-for-all. We recognize Wailuku Water’s right to a contested case if the commission issues a notice [of violation]. It’s not ripe. The commission hasn’t done anything,” he said.
Attorney James Geiger, representing WWC, said he thought a contested case hearing would be the most efficient way to have all of the evidence presented to the commission. He added, “We fully expect the Hui should be a participant in this because they are the complaining party.”
Given that the hearing officer would have access to the commission’s meeting minutes, which would explain the scope of the case, and that WWC intends the Hui to be a party, the commission approved the staff’s recommendations. Commissioner Kamana Beamer voted in opposition.
— Teresa Dawson
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