Commission Orders Contested Case, Mediation for Maui Water Disputes

posted in: March 2006, Water | 0

The controversy over surface water in central Maui has finally come to a head.

On February 15, the state Commission on Water Resource Management authorized its chair, Peter Young, to appoint a mediator to help resolve an October 2004 waste complaint by Hui O Na Wai `Eha and Maui Tomorrow Foundation, Inc. against Hawaiian Commercial & Sugar and Wailuku Water Company, LLC, which divert some 65 million gallons of stream water a day via the Wailuku irrigation ditch.

The commission also decided that day to combine a contested case hearing on eight applications for water from high-level sources in the `Iao Ground Water Management Area, with a June 2004 petition by Hui O Na Wai `Eha and Maui Tomorrow to amend the interim instream flow standards for Waiehu, `Iao, Waihe`e, and Waikapu streams (known collectively as Na Wai `Eha, the four waters). Finally, the commission authorized Young to appoint a hearing officer for the combined contested case.

Complaints by many Maui residents and some farmers about the misuse of central Maui’s groundwater and surface water resources by the county and private ditch operators have festered for years, but began gaining momentum with the 2003 designation of the `Iao Ground Water Management Area (which placed the aquifer under the Water Commission’s management), Hui O Na Wai `Eha and Maui Tomorrow’s 2004 filings with the Water Commission, as well as a recent settlement agreement between the Maui Mayor Alan Arakawa and Office of Hawaiian Affairs and Earthjustice (which represents Hui O Na Wa `Eha and Maui Tomorrow).

On February 2, as directed under the designation process, the Water Commission held a hearing on water use permit applications for groundwater from high-level sources within the `Iao Groundwater Management Area. Those sources include various tunnels and wells that tap millions of gallons a day of impounded dike water.

Because these high-level sources tap groundwater that would otherwise discharge as base flow into streams, several organizations requested a contested case hearing on the permit applications. Hui O Na Wai `Eha and Maui Tomorrow requested a contested case, as did the Office of Hawaiian Affairs, and the sovereignty group Ka Aha O Na Wai `Eha Ku Moku. Permit applicants Wailuku Water Company and the Maui Department of Water Supply also requested a contested case. HC&S, another permit applicant, did not request a contested case, but asked that it be included as a party if one is ordered by the Water Commission.

Recognizing the interrelationship among the waste complaint, IIFS petition and the water use permit applications, commission staff proposed on February 15 to combine the three issues into one contested case. Testimony by several of the parties involved, however, led the commission to deal with the waste complaint separately.

“We realize a contested case hearing on these matters may well be inevitable and ultimately necessary….But even though these matters are related, a contested case hearing is premature,” Earthjustice attorney Kapua Sproat told the Water Commission.

Sproat’s main concern was that the state Water Code requires the commission to act on a citizen complaint before a contested case is initiated. Years ago, she said, the Water Commission did just that in O`ahu’s Waiahole Ditch contested case. After conducting an investigation into alleged waste, the commission staff had recommended issuing an order to the diverter, Waiahole Irrigation Company, to show cause why it should not be ordered to cease wasting water. The commission also ordered the parties into mediation, she said.

Sproat urged the commission to do the same with the current waste complaint.
“[Water Commission] staff doesn’t feel comfortable with the information provided, but that can be alleviated with an order to show cause,” she said. “In the Waiahole case, there were conflicting claims of waste and how much information was being provided. It was almost identical in many ways” to Na Wai `Eha, she said.

Because her clients’ complaint is a request for immediate relief, combining the waste complaint into a contested case that could take years to resolve effectively denies the request for immediate relief, she said.

Sproat also expressed concern that including the waste complaint in a combined contested case – a court-like proceeding — would diminish her ability to interact with Water Commission staff.
Maui County Corporation Counsel Jane Lovell and Office of Hawaiian Affairs lead advocate Jonathan Scheuer also asked that the commission deal with the wasting issue before initiating a contested case hearing.

Attorney Linnel Nishioka, representing Alexander & Baldwin, HC&S, and East Maui Irrigation Company, argued against issuing an order to show cause. She said her clients are using 50 million gallons of water a day from the Wailuku ditch system, which it shares with Wailuku Water Company, for agricultural purposes.

“We feel we have provided ample justification of that use,” she said.

Wailuku Water Company president Avery Chumbley also did not favor an order to show cause, and urged the commission to order mediation for the waste complaint. Over the last several months, acting deputy director for the commission Dean Nakano had been trying to mediate a resolution to the waste complaint on his own, and had convinced HC&S and WWC to devise and implement a monitoring plan.

In the end, the Water Commission agreed to deal with the waste complaint first, through mediation. (Unlike an order to show cause, which would require the appointment of a hearing officer and would have opened documents submitted for public review, mediation discussions are closed to the public.)

The commission unanimously approved commissioner Lawrence Miike’s motion to authorize the commission chair to appoint a mediator for the waste complaint and a hearing officer for a combined contested case hearing on the IIFS petition and `Iao high-level groundwater use permit applications. The commission also ordered that the recommendations that may result from the mediation be brought to the commission for approval before the contested case begins. Water Commissioner Meredith Ching, who is also vice president of HC&S’s parent company Alexander & Baldwin, recused herself from discussing and voting on the issue.

Permits Approved
Not everything involving central Maui water is in dispute. At the commission’s February meeting, the Maui Department of Water Supply received approval of seven of its applications to pump from the `Iao Ground Water Management Area. The county now has permission to pump an average of 11.227 million gallons a day from the area, which is roughly the amount it was using when designation occurred in July 2003. Today, the county pumps somewhat more than that and plans to apply for another water use permit to make up the difference.

— Teresa Dawson

Volume 16, Number 9 March 2006

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