Ex-Judge Says East Maui Farmers Don't Need More Water for Taro

posted in: August 2006, Water | 0

Taro farmers in East Maui don’t need any more water right now to grow their crops, according to retired judge E. John McConnell, hearing officer for a contested case on East Maui water licenses.

The contested case, which involves the diversion of anywhere from 100 million to 400 million or more gallons of water each day from the Honomanu, Ke`anae, Nahiku, and Huelo watersheds of East Maui to agricultural fields and municipal water treatment plants in central Maui, began more than four years ago when Alexander & Baldwin and its subsidiary, East Maui Irrigation Company, requested a long-term lease from the state Board of Land and Natural Resources to continue diverting water from those four watersheds.

Maui attorney Isaac Hall and Alan Murakami and Moses Haia of the Native Hawaiian Legal Corporation requested a contested case on the proposed lease, as well as the annually renewed permits that have allowed the continued diversion of East Maui streams ever since leases allowing the diversions expired nearly two decades ago.

Recognizing that the case may not be resolved any time soon, McConnell held a set of hearings late last year to determine whether and how much water should be immediately released to taro farmers affected by the East Maui Irrigation ditch system.

On June 19, McConnell issued his recommended findings of fact, conclusions of law, and order concerning interim relief for East Maui farmers needing an immediate release of water from the ditch.

In short, McConnell found that the amount of water already flowing in the streams serving the farms of Beatrice Kekahuna, members of Na Moku Aupuni O Hawai`i Nei (a hui of Wailuanui Valley taro farmers), and Ernest Schupp is adequate. (Kekahuna and Na Moku are represented by NHLC; Hall represents the activist group Maui Tomorrow, of which Schupp and flower farmer Neola Caveny are members.)

After hearing from expert witnesses and reading studies on the water requirements of taro, McConnell found that taro needs only 50,000 gallons per acre per day of water to grow successfully. This figure is slightly higher than the 30,000 gpd suggested by A&B/EMI’s expert, agronomist Ramon de la Pena, and significantly lower that the 100,000 to 300,000 gallons a day of water suggested by Waiahole taro farmer Paul Reppun, who testified for NHLC.
Based on figures offered by EMI, McConnell found that Beatrice Kekahuna had cleared about one acre for taro and that her auwai receives 235,000 gallons a day. He also found that minimum flow in Waiokamilo Stream – 3 million gallons a day – exceeds the 2,550,000 gpd needed for all 51 acres that were said to have been in taro cultivation in Wailuanui Valley at the time of the mahele, not just the 17 acres EMI states are currently in cultivation.

Finally, McConnell found that Puolua Stream, which provides water to a one-acre parcel owned by George and Mary Keala and Elizabeth Lapenia and farmed by Ernest Schupp, receives 262,000 gallons of water a day. (Neola Caveny requested that 750,000 gallons of water a day be released into Hanehoi Stream. Because she wanted the water for stream restoration purposes and not for farming, McConnell felt she hadn’t established the need for an immediate release of water.)

Because he found that the farmers are getting far more water than they need, McConnell did not recommend any interim release of more water into Honopou, Waiokamilo, Puolua, or Hanehoi stream.

In his recommended order to the Land Board, McConnell admits that many of his findings and conclusions are based on evidence presented by EMI. During the interim hearing, NHLC attorneys had refused to provide specifics regarding the water needs of its clients. They argued that the burden of proving the diversion does no harm rests with the diverter – in this case, EMI/A&B and the state. To support that claim, they cited a precedent established more than 100 years ago by an A&B subsidiary, HC&S. In that case, in which HC&S was suing Wailuku Sugar Company, the court agreed with HC&S that that the burden of demonstrating no harm from a diversion rests “wholly upon those seeking the transfer.”

But McConnell disagreed with NHLC’s approach.

“This argument’s only logical conclusion would be the complete elimination of the diversions in question. That would unquestionably violate the public trust. Apparently recognizing this, the Na Moku and MT (Maui Tomorrow) parties have not asked that the natural flow of the streams be returned. Rather, they ask for ‘releases sufficient to meet the taro cultivation and gathering requirements of these parties,’” McConnell writes, adding that his finding that there is sufficient water to grow taro is “only valid to the extent EMI’s flow measurements are accurate.”

McConnell adds that although stream flows must be sufficient to protect Native Hawaiian gathering rights, he lacked the quantitative evidence to determine those amounts.
To ensure that farmers with rights to water continue get the water they need, McConnell recommended that A&B/EMI be immediately ordered establish monthly inspections to make sure all of their diversions are clear of debris and in good working order, and establish an effective bypass repair program.

He also recommended the Land Board direct the Department of Land and Natural Resources to immediately establish a program to monitor flows above and below each stream diversion and hire a monitor to ensure compliance with its order, address complaints by any of the parties involved in the contested case, record stream temperatures, and determine whether a taro farmer needs additional water for new lo`i or to control pythium rot.

Specifically, McConnell suggested that the Land Board order that an additional 50,000 gallons a day of water be added to a stream “when any wetland taro farmer, Hawaiian or otherwise, demonstrates to the monitor’s satisfaction that he or she is ready, willing and able to immediately receive water for lo`i that were not being cultivated as of the date of this order.”

He added, “While there are important public interests at the west end of EMI’s ditch system, there should be ample water for any foreseeable new lo`i that may be ready hereafter.”
McConnell also recommended that the Land Board determine the status of petitions filed by NHLC with the state Commission on Water Resource Management to amend the interim instream flow standards of some 27 East Maui streams and, if necessary, file its own petition with CWRM to amend the IIFS for East Maui’s Honopou, Waiokamilo, Puolua, Hanehoi, Wailuanui, and Palauhulu streams. Finally, he said that the DLNR should, if necessary, be directed to take steps to establish IIFS and prepare an environmental assessment.

Oral arguments before the full Land Board will be the next step in the process. As of press time, no schedule had been set.

— Teresa Dawson

Volume 17, Number 2 August 2006