Get out your score cards. Rancorous disputes over long-standing diversions of water from four Central Maui streams are coming to a head, and keeping track of the teams and their plays is becoming complicated.
The diversions go back as far as the 1880s, when Claus Spreckels dug a 15-mile-long ditch from Waihe`e Stream to Wailuku. A series of smaller ditches followed, all carrying water to cane fields in the Central Maui plain. Together, the ditches take practically every last drop out of the streams during periods of low flow.
Starting in the 1980s, much of the acreage once in thirsty sugar was converted by Wailuku Agribusiness to crops using far less water. Yet Wailuku Agribusiness (now known as Wailuku Water Company) and Alexander & Baldwin subsidiary Hawaiian Commercial & Sugar (HC&S) continue to take as much water as ever from the streams, usually more than 50 million gallons a day.
In June 2004, alleging that “millions of gallons of stream water … are needlessly diverted and dumped” on a daily basis by the companies, two community groups – Hui O Na Wai `Eha and Maui Tomorrow, represented by Earthjustice – asked the state Commission on Water Resource Management to restore much of the water to the four streams (Na Wai `Eha) and their tributaries. In response, the two companies denied that they were taking water in excess of their needs.
Frustrated, the community groups filed a formal complaint of water waste against the companies in October 2004. Included with the complaint were photographs that, Earthjustice said, documented “numerous examples of illegal dumping, indicating that the companies prefer the water go to waste rather than return to the streams of origin.” The complaint also alleged that, contrary to the requirements of the state Water Code, Wailuku Agribusiness and HC&S had failed to file timely reports documenting their diversions and uses, even as Wailuku Agribusiness “continues to convert hundreds of acres of farmland into urban developments.”
Last month, before the Water Commission had even thought of acting on either the instream-flow amendment petition or the waste complaint, Earthjustice dropped on it yet another petition – this time asking the Water Commission to designate the watershed of the four streams a water management area. The streams overlie the `Iao aquifer, which has been a designated groundwater management area since 2003. The most recent petition asks the commission to regulate stream water as part of the existing water management area, similar to the integrated regulation of Waiahole groundwater and stream water in windward O`ahu.
According to the petition for designation, “the companies’ attempts to monopolize Na Wai `Eha water, their refusal over several years to provide meaningful water use data or yield a single drop of water for public trust purposes, and their imposition of extortionate rates on county water uses, highlights the serious stakes of the current disputes over Na Wai `Eha water. As in Waiahole, this dispute raises critical questions about the future allocation of Na Wai `Eha water between instream and offstream uses. This dispute, however, adds a whole new dimension of controversy beyond Waiahole because the Companies are defying the very constitutional principle of water resources as a public trust held by the state ‘for the benefit of the people’… Instead, the Companies, in violation of the law, insist on treating Na Wai `Eha water as a commodity held for their private profit, to be sold to the highest bidder.”
The Waiting Game
The state Commission on Water Resource Management is notoriously slow in carrying out its mandates. To give one example: for more than a decade, the commission has been trying to update the multi-part State Water Plan, most of which has not been changed since 1990. For another, a petition for designation of Punalu`u, in windward O`ahu, as a surface water management area has been pending since 1994. Yet a third example may be found in the famous contested case surrounding Waiahole Ditch. The case began in1994, has been appealed twice to the Hawai`i Supreme Court, and is in the commission’s lap, on remand, a third time.
After the complaint of wasting water was lodged, the task of conducting an investigation fell to commission staff. By August 2005, staff reported back to the commission on the status of their work so far. A chronology attached to the report gives a hint of the frustrations staff must have experienced in their efforts to obtain the information needed for a complete understanding of the situation. Time and again, deadlines for submitting comments or providing data slipped. Often the companies provided information that was incomplete, leading staff to ask follow-up questions. In July and August, field visits were conducted. Finally, on August 17, staff presented its interim report to the commission, anticipating that the commission might act on the complaint as early as the following month.
No recommendation appears in the staff report, but it does note, “WACI [Wailuku Agribusiness Company, Inc.] is in transition. Land use is changing. Water delivery agreements have been made and further are contemplated. Some acreages are being developed while others are remaining in agriculture. Determining actual water uses is a moving target at best. It is made more difficult because of inadequate gaging and only rough estimates of system losses and kuleana uses.” Minutes of the August meeting indicate staff anticipated bringing a recommendation for action to the commission at its October 2005 meeting.
It didn’t happen. Not until January 2006 did the subject of the complaint come before the commission again, in the context of a “non-action item” update on pending groundwater and surface water issues in the Wailuku, Maui, area. The following month, the commission voted to have a super-contested case hearing to resolve not only the water-wasting complaint and the petition to amend stream flows, but also disputes over applications for permits to take water from the high-level dike sources in the `Iao groundwater management area. In March 2006, the commission revisited the decision, this time breaking out the water-wasting complaint for expedited action, but at the same time ordering the parties to engage in mediation. “If mediation proves fruitless, immediately begin the contested case to provide expeditious relief,” the commission ordered.
A Slow Start
Mediation did not work. In November, hearings officer (and Water Commission member) Lawrence Miike presided over a pre-hearing conference, intended to set the rules and schedule for the coming contested-case hearing on the water-wasting charges.
“At the hearing, when we were getting into setting the schedule,” says Earthjustice attorney Kapua Sproat, “I raised the issue that since there was such a heated factual dispute, we expected we would need a sufficient amount of time to do discovery. So far, HC&S and Wailuku Water Company have been unwilling to provide information on end uses” of the water they take.
Not even commission staff had been able to get accurate, reliable information from the companies, Sproat said. “We said since you [staff] haven’t been able to get the information, we’ll have to do it. We’ll have to do discovery, probably take depositions.”
At the time of the prehearing conference, the deputy attorney general assigned to the commission, Julie China, seemed inclined to agree with the community groups. Before the week was out, however, she had changed her mind.
“On Friday, we get Minute Order 5,” Sproat said, “saying that upon review, ‘there is no procedure for conducting discovery in a contested case hearing.’”
In addition, the minute order, signed by hearings officer Miike, requested that the parties brief him on the scope of the contested case hearing itself. “The Hearings Officer raised the issue of ‘waste’ versus ‘reasonable and beneficial use,’” the order states. “Guidance will be provided at the next Prehearing Conference on the types of evidence applicable to each CCH [contested case hearing] and the H.O. will rule on the relevance of the evidence offered during the CCH as to whether it pertains to the Waste Complaint” or the petition for the amendment of instream flow standards.
The parties alleging the waste – including now not only the Hui and Maui Tomorrow, but also Maui County and the Office of Hawaiian Affairs – asked for a reconsideration of the decision on discovery. The companies, through their attorneys, vigorously objected.
On December 12, in Wailuku, Miike heard the arguments for and against discovery and entertained as well the arguments of all parties on the scope of the contested case on waste.
With respect to discovery, the companies agreed that they would attempt to comply voluntarily with the community groups’ requests for information in advance of the start of the formal contested case.
The discussion over the scope of the hearing was not so easily resolved.
Waste – Not!
What constitutes the waste of water?
That question was at the heart of the arguments heard by Miike at the December prehearing conference.
The community groups (collectively the Hui O Na Wai `Eha, Maui Tomorrow, OHA, and Maui County) wanted to have anything other than “reasonable-beneficial use,” as defined by the Water Code, deemed to be waste.
“If you look at the issues in our citizens’ complaint,” Sproat told Miike, “artificially restricting the scope of the hearing to eliminate [consideration of] reasonable-beneficial use would cut the heart out of our complaint.”
The companies saw it differently. Yvonne Izu, co-counsel for HC&S, noted that the Water Commission had separated out the waste complaint from the petition to amend instream flow standards, in which the issue of reasonable-beneficial off-stream uses would be weighed against public-trust benefits of keeping the water in the streams. “To me,” Izu said, that separation “is an indication that in [the commissioners’] minds waste is something separate and apart from reasonable-beneficial analysis…. If you read [case law] closely, it says waste is not just whatever isn’t reasonable and beneficial.”
Miike agreed with the companies that the burden of proving waste fell to the community groups, given that the investigation undertaken by commission staff was stayed by the decision to go forward with a contested case. “How are you going to prove what’s reasonable-beneficial use?” Miike asked the groups. “You say waste is anything over reasonable-beneficial, but how are you going to prove that?”
Sproat replied that by looking at historic water uses and water duties (the amount typically of water typically required by a certain crop), one could obtain an idea of whether water was being wasted. For sugar, she said, “those water duties ranged between 4,500 and 9,000 gallons per acre per day.”
“It’s reasonable to compare the historic use to existing water duties… I’d also note that if you look at HC&S water use and water duties for certain fields in recent years, in some months, it’s between 10,000 and 15,000 gallons per acre per day. We submit that’s unreasonable and constitutes waste.”
At the conclusion of the prehearing conference, Miike offered his take on how the contested-case hearing on waste would proceed:
With respect to waste, he noted again, the “burden of proving waste is on the petitioners. The respondents’ burden is to rebut the evidence….
“In rebuttal and discussion, the concept of waste, as contemplated by the [Water] Code, and the concept of reasonable-beneficial [use], as contemplated by the Code and Supreme Court, are distinct issues, but really it’s a question for my judgment and a question for when we actually conduct the contested-case hearing on waste… [and] I will cross that bridge when we come to it. I don’t know how I can make that distinction at this time…. The second contested-case hearing [on instream flow standards] is really the one where we’re going to address reasonable-beneficial [use] and waste…
“What I’m saying is, waste is a separate concept from reasonable-beneficial. We won’t be requiring reasonable-beneficial use to be proved either as evidence of waste or rebuttal. That issue will be dealt with directly in the instream flow standard contested case hearing.”
Under a schedule worked out at the December prehearing conference, the actual “expedited” contested-case hearing on the issue of waste is to be held the first week of May.
— Patricia Tummons
Volume 17, Number 7 January 2007
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