“Where is the justice in this?” Hui o Na Wai ‘Ehā president Hōkūao Pellegrino asked the state Commission on Water Resource Management at its September 21 meeting.
In June, the commission issued its decision and order in a contested case hearing over water use permits for the Na Wai ‘Ehā surface water management area in Central Maui. The order, which established who was entitled to water and how much each permittee should receive, gave priority to native Hawaiian traditional and customary uses, domestic uses, Department of Hawaiian Home Lands reservations, and the Maui Department of Water Supply.
Yet, as Pellegrino and other Hui members allege in a complaint they filed August 11, the company that controls the old plantation-era distribution system continues to deprive native Hawaiian taro growers of the water they deserve. The Hui argues that Wailuku Water Company (WWC), which owns and operates the ditch system that diverts Waikapū, Waihe‘e, Wailuku, and Waiehu streams, is instead providing water to its customers first, even if they have lower-priority use permits.
The company has cut off or restricted flows to those taro growers and other kuleana landowners by pouring concrete where a wooden gate used to be and installing a locked valve on a pipe that taps the reservoir those kuleana users must rely on because of that concrete.
According to the Hui, the problem dates back to last October, when WWC installed the butterfly valve and lock on the pipe that releases water into the South Waikapū kuleana ‘auwai.
The Hui and the taro farming families who rely on that ‘auwai complained to commission deputy director Kaleo Manuel about their lack of water following the valve’s installation.
Manuel was unable to get the commission to take any action on the matter because the commission could only address interim instream flow standard issues at the time. But Manuel believed that the final decision and order, which established water allocations and priority uses, would allow the commission to resolve the issue.
“[Y]et after two months since the Final D&O has been out, nothing has happened,” Pellegrino complained.
Meanwhile former WWC vice president Clayton Suzuki “has been able to capture whatever amount of water is flowing into the kuleana ‘auwai,” Pellegrino wrote. Suzuki, he pointed out, “does not have appurtenant rights that are recognized in the 2021 Final D&O and does not have Native Hawaiian lineal/cultural T&C rights.”
The Hui also points out in its complaint that Waikapū Properties, LLC, a cattle ranch that takes its water from the reservoir, has the lowest priority permit and is also receiving water before any of the other kuleana users. The Hui also alleges that the company is providing water to a farm that should not be receiving water from Waikapū Stream.
Under the commission’s order, Suzuki was granted a water use permit for 10,850 gallons per day (gpd) and Waikapū Properties got one for 1,838 gpd.
Drying Up
In 1850, there were 121-plus acres of taro on kuleana lands south of Waikapū Stream; now there are fewer than eight, Pellegrino told the commission.
He said that in 1904, with the construction of what is now known as Reservoir 1, kuleana taro farmers were cut off from their traditional ‘auwai and forced to rely on delivery of water via the plantation ditch system.
Fourteen years ago, according to WWC data, 13 South Waikapū kuleana users were being provided with 840,000 mgd, “during one of Maui’s severe droughts along with active cultivation of sugarcane by HC&S on Waikapū Field #735 off of S. Waikapū Ditch,” the Hui’s complaint notes.
Since then, the number of active taro farmers in the area has dropped to six, and the commission has allocated only 265,188 gpd to the South Waikapū kuleana users.
So why aren’t they getting it, when WWC provided more than three times that amount to kuleana users 14 years ago?
Drought might explain some of the shortfall.
Maui has been in a long-term drought, CWRM hydrologist Ayron Strauch told the commission. For the most part, every single month, flow in Waikapū Stream has been below the long-term average, he said.
In 2020, there were a lot of days when the interim instream flow standards set by the commission were not being met because of both a decline in rainfall and efforts by WWC to meet the needs of offstream users, he said.
This past June, WWC, citing drought conditions, sought emergency relief from the IIFS for Waikapū Stream and asked the commission for permission to increase its diversions. That request was denied.
A month later, and after the commission had issued its decision and order, WWC reported that its emergency control gate from Reservoir 1 had been vandalized so that it would release more water into the South Waikapū ‘auwai.
WWC informed the commission that it would “shut down ditch flow to install a hollow-tile wall to seal off additional releases to South Waikapū ‘auwai,” according to commission staff.
Solutions
To resolve the issue, the Hui proposed that the commission limit flows into Reservoir 1 and require WWC to release water to kuleana users via the sluice gate the company recently cemented shut.
According to Strauch, the unlined reservoir leaks 150,000 gpd when it’s full. It’s designed to hold 12 million gallons of water, but Manuel says it probably can hold only about seven million gallons currently due to siltation.
If kuleana users — and Suzuki — receive water through the sluice gate, the only permitted user of the reservoir left would be Waikapū Properties.
“Why would you want to fill a seven million gallon reservoir for 1,800 gallons a day for offstream use? The solution is very clear. Very easy,” Pellegrino told the commission.
He pointed out that the reservoir needs to be full before the water level is high enough to reach the pipe that provides water to the kuleana ‘auwai. So in drier times, Waikapū Properties would have access to water, but the kuleana users would not.
To make the sluice gate functional again, CWRM would have to require Wailuku Water Co. to remove the cement, keep the gate open, and install a gage to provide the right amount of water.
The Hui also asked the commission to require Suzuki to receive his water after the kuleana users, and to ensure that Waikapū Properties is the only off-stream user of the South Waikapū Ditch and Reservoir 1.
The commission’s decision and order calls on the kuleana users to seek to reduce water losses from their unlined ‘auwai. Pellegrino said he had done a feasibility study years ago to determine the cost of upgrading the kuleana ditch. The cost then was roughly $150,000.
“Last week, I got quotes from the only two piping companies on Maui. We’re now looking at $865,000,” he said.
Even if the Hui wanted to upgrade the ‘auwai, they couldn’t, since it runs across land owned by Waikapū Properties and is covered by a perpetual easement held by WWC.
“These kuleana landowners have literally been threatened [and] asked to not go to the reservoir [or] to clean the ditch,” he said.
The Hui asked the commission to either require WWC and Waikapū Properties to provide the kuleana users access to maintain and manage 0.9 miles of ‘auwai “AND/OR to allow access to restore the traditional ‘auwai system from the Waikapū Stream (0.25 miles).” That land is also privately owned.
Earthjustice attorney Isaac Moriwake urged the commission to take the Hui’s proposals seriously.
“How unprecedented this is,” Moriwake said. He’s represented the Hui for the last 20 or so years and has “never seen an outright dictatorial cutoff” of water.
He noted that WWC’s own founding documents recognize priority kuleana rights in times of drought, and the commission’s order recognized native Hawaiian rights and made them a top priority.
“Now we need to start acting like we mean it,” he said.
Moriwake recounted that in 2017, when WWC was failing to meet the IIFS that had been agreed to in a settlement with the Hui and others, then-Water Commissioner William Balfour said it seemed like WWC was getting away with murder.
“What do we call this? Kuleana rights have been around more than a century before IIFS,” Moriwake said.
Next Steps
Commissioner Mike Buck asked stream protection branch head Dean Uyeno what he would recommend to ensure compliance with the commission’s June decision and order.
“I think one possibility may be to, as Mr. Pellegrino noted, directly feed the kuleana ‘auwai and cattle operation from the intake and remove the reservoir. That would address some of the loss issues,” Uyeno replied.
He continued, “Eliminating the use of the reservoir, that would need to come from an order from the commission. It’s private property. There are issues with building up storage capacity in times of drought. The issue needs to be discussed in more detail.”
Strauch later suggested that compartmentalizing the reservoir might help improve its ability to provide water to the kuleana ‘auwai “without removing the reservoir’s functionality.”
No WWC representative participated in the commission’s Zoom meeting last month, and the company submitted no written testimony on the Hui’s petition. Even so, Manuel said his office has been communicating with the company and trying to facilitate discussions among all the parties.
“Any final decision needs to happen with this commission. I will say we shared all the same information with all the parties,” he said.
This month, the commission staff plans to recommend a formal action on ways to ensure water is delivered to kuleana users. While those recommendations are still being worked out, it was clear last month that commissioners want to see their order followed and are open to the solutions offered by the Hui.
“Is there anything in the four solutions advanced by the Hui that is not in keeping with our decision and order? Do the solutions of the Hui strengthen our enforcement of the decision and order?” asked commissioner Neil Hannahs.
Manuel replied that the short answer was that the Hui’s proposals were in line with the commission’s order with regard to reducing waste.
He added that his office is investigating some longer-term strategies, including how the reservoir is used and whether it continues to be used.
Commissioner Aurora Kagawa-Viviani worried that, as the system is set up now, “the person at the end of the line gets short shrift.” While the Hui and commission staff discussed a number of engineering solutions, she asked how the commission could also “mediate these power issues.”
Commission chair and director Suzanne Case said that’s something the commission wrestled with in making its June decision.
“One complication is we are not part of the agreement between the users and the distributors,” Case said. “We need to be careful what is our role and what is the role [of users]. It is a complicated system and set of people … very much complicated by the drought situation. As the climate changes and earth warms, distribution of water gets more random. … This is a little microcosm of what is happening all over the planet.”
“We just have to do our best to moderate as we are required to do and are able to do,” she continued. “I appreciate the staff bringing this as an information item. It’s been really helpful to bring information items before action items. … The absence of WWC in these discussions is notable and problematic. … I’m not going to speculate on why they’re not here. I’m sure they have some positions they’ll have to express.”
Also in answer to Kawaga-Viviani’s question, commissioner Hannahs said that the commission did set policy in its June decision and order, and now it needs to enforce that policy.
With regard to enforcement, he added, “trying to play cops against people who are trying to create problems or are misaligned with our decision, it’s not an efficient way to go about business. We need a better community.”
He said that’s why he appreciated the Hui’s work and Manuel’s efforts to meet with people offline, to help “get through historical polarities [and] try to bring them around to the new order we are trying to impose here. We need to be persistent and relentless.”
Strauch said his office has been working with WWC to obtain reports on both the amount of water diverted and the amount of water distributed to the ‘auwai. He added that end users must also report what they use, as well.
“It’s our responsibility to make sure the IIFS is maintained. We just can’t run around measuring everybody’s use,” he said.
For Further Reading
Some of our more recent articles on this issue, available at environment-hawaii.org:
- “Commission Tweaks Na Wai Eha Decision, Shrinking Mahi Pono’s Water Allocation,” July 2021;
- “Parties Offer Final Arguments In Na Wai Eha Contested Case,” December 2019;
- “Water Commission Struggles to Address Failure to Enforce Minimum Stream Flows,” January 2018.
Lana‘i Water System Shines As Example to Other Operators
“I constantly hear reasons why we can’t do things. Joy is the reason why we can … with resources, obviously, but leadership,” Water Commission deputy director Kaleo Manuel said after Joy Gannon, director of utilities for the Lana‘i Water Company, briefed the commission on the utility’s operations.
“I wanted to give the commission an example … of what can be done on a system level if you take the time and have the right leadership,” he said.
In 2012, billionaire Larry Ellison’s Lana‘i Resorts, LLC bought the island of Lana‘i. By April 2019, the company, renamed Pulama Lana‘i, has invested some $10 million in improving the island’s water and wastewater systems.
With both of its wastewater treatment facilities able to produce high-quality, R1 wastewater, “we are the only island that has the capability of recycling all of its wastewater,” Gannon said.
In 2016, the utility began implementing “smart irrigation,” installing a weather monitoring station at Manele, which has a Four Seasons resort and a golf course.
In addition to being irrigated with only brackish or recycled water, each one of the golf course’s sprinklers are tied to a computer system that allows for fine-tuning the amount of water to be spread in a certain area.
The utility was also an early adopter of the American Water Works Association’s water audit, which forces utilities to examine the volume of water being used, the validity of the data it receives on that use, and financial impacts.
It initially didn’t even have any real maps of the water lines and existing meters, she said, adding, “We had some real big gaps and problems.” So during the first two years of its audit, it was focused on improving its validity score.
“We are one of the water audit fanatics I guess you might say. We actually do a water audit every single month to see irregularities in our data,” she said.
The utility eventually replaced nearly all of the island’s water meters with smart meters, she said. And of the 1,700 or so customers with smart meters, nearly 20 percent of them also use EyeOnWater to track their usage and detect leaks, she said. Customers can view their usage through eyeonwater. com or its app.
Smart meters will log how much water passes through every 15 minutes or every hour, depending on the type of meter installed. The meter then texts that information to a database.
For EyeOnWater customers, if a leak is suspected, the customer is sent an email.
In the beginning, one in every six meters detected a leak, she said, adding that since then, leaks have become less common.
Between 2016 and 2020, total pumping dropped from a little more than 1.75 million gallons a day (mgd) to less than 1.5 mgd.
“Some of it was just plain old irrigation and water line improvements,” she said.
The utility has also installed smart meters on its distribution lines. Combined with a GIS system, the utility is alerted to when and where a leak is occurring, and can send a drone out to view the site.
“We are able to plug [GIS coordinates] into the drone. It has a map of where to fly,” she said.
After Gannon’s presentation, commissioner Neil Hannahs said he really appreciated what had been done at the golf course. “Is this common among golf course operators or are you in a lead position?” he asked.
“The technology that’s being used at the golf course is quite frankly phenomenal. It’s cutting edge,” she said.
She warned that having the technology alone isn’t enough. “You gotta match it with the staff’s willingness to use that technology,” she said, adding that there is a learning curve. Ellison’s willingness to replace leaking pipes had a huge impact, as well, she added.
Hannahs said he hoped resort and golf course organizations are getting together to reduce their water use. When the commission is faced with a need to supply water to support an economic opportunity, the cost of system upgrades is thrown out as the reason why they can’t do it, he said.
“We can’t have the natural capital keep giving way just because people don’t want to make the financial investment,” he said.
Commissioner Aurora Kagawa-Viviani asked how a Lana‘i’s meter system would work with a bigger utility. The Honolulu Board of Water Supply serves 1 million people a day.
Gannon said that metering could be done by district. “You basically have a supply meter and all your demand meters below that,” she said.
Again, she stressed that technology alone will not be enough to reduce water losses.“You have to work with your customers,” she said.
— Teresa Dawson
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