Final Decision in Waiahole Case Changes Little for Windward Streams, Leeward Farmers

posted in: February 2002, Water | 0

Waiahole: More than a place name, it has become a word freighted with meaning, a metonym for a complicated, multifaceted dispute over water rights not just in windward O`ahu, but statewide.

On December 28, without fanfare, the dispute came to an end. That day, the six-member state Commission on Water Resource Management voted to accept, with minor changes, the recommended findings of Lawrence Miike, the hearing officer it had appointed to reconsider the contested case involving the diversion of windward O`ahu water to the dry, leeward side after the Supreme Court remanded it back to the commission in August 2000.

The decision leaves mostly intact the division of the water that the commission made on Christmas Eve, 1997. That decision, appealed to the state Supreme Court, was found to be deficient in several important respects. To rehear the case, the commission selected former state director of Health Miike, who had served on the commission during deliberations on the original contested case.

With the two dozen or so different parties to the case agreeing to expedited procedures and the scope of issues focused more narrowly by the Supreme Court’s decision, Miike was able to complete hearings by April 4. On August 1, he released his proposed findings of fact. For most of the 160 or so pages of the final decision, the language tracks Miike’s verbatim, right down to the typographical mistakes.

The major difference is that the final commission decision allocates about 13.3 million gallons a day to the leeward users. That’s about a million gallons a day more than the 12.29 mgd Miike had recommended, but still about 730,000 gallons a day less than what the commission’s original order had proposed. The way the allocation breaks down, however, means more water for leeward farmers than the original decision had allowed. The commission’s decision describes the allocation in this way:

“In the original Decision and Order, a total of 11.93 mgd in water use permits were granted, out of a request for 31.08 mgd. In addition, the commission had made allowances for 2.1 mgd in operational losses [leaks in the Waiahole ditch system]. On remand, the total water use permits granted equal 13.30 mgd, an increase of 1.01 mgd. However, this total includes 2.00 mgd for the water use permit to [the state Agribusiness Development Corporation, or ADC] for system losses, and there has been a net reduction of 0.63 in all other water use permits. So the original offstream water use permits plus the system loss allowance, which totaled 14.03 mgd, have been reduced to 13.30 mgd.”

Winners and Losers

Most leeward users will see their allocations remain about the same. Base flows to windward streams have been increased slightly from the original decision, to about 9.9 mgd, with Miike and the commission invoking what they see as an ancient Hawaiian principle that no more than half of a stream’s flows should be diverted. Several critics of his proposal have pointed out, however, that in ancient times, water diverted from streams – almost always for taro cultivation – remained within the watershed and was eventually returned to the stream at a point downriver of the diversion.

One of the most contentious issues in the Waiahole case had been the wasting of water at the end of the leeward system. Waste is not allowed under the state Water Code. The original commission decision allocated 2.1 mgd for system losses, with this amount being approximately equal to 2.1 mgd of water from Kahana Stream that was diverted into the ditch but not included among the windward streams whose flows were addressed in the contested case hearing. The Supreme Court had harsh words for the commission’s determination that it lacked “jurisdiction” to regulate diversions from Kahana Stream and ordered it to “scrutinize such an allocation [for system losses] as it would any other proposed use, pursuant to the permitting process.” The commission has now addressed this in the award of a water use permit of 2.0 mgd to the ADC for system losses.

Moving Averages

How much water can be delivered each day to leeward users? Is it to be strictly limited to the allocated amount? Or can farmers take more when they need it, so long as their average draw over the last 12 months does not exceed their permitted amount? Given that the permitted amount of roughly 2,500 gallons per acre per day was based on average needs – including some days when newly planted crops might need as much as 65,000 gallons per acre per day, and others when no water would be used on fallow land or mature crops – the question is vitally important.

The original commission decision allowed daily amounts of water delivered to the leeward side to exceed permitted daily amounts, so long as the 12-month moving average did not exceed the permitted levels. But the Supreme Court vacated the use of the moving average, noting that this could “subject windward streams to extreme and potentially harmful fluctuations in base flow over the course of a year.”

The commission deals with this now by allowing reductions in the base flows of windward streams for up to five non-consecutive days a month. Thus, Waiahole and Waianu streams, which have been assigned base flows of 8.7 mgd and 3.5 mgd respectively, may see base flows reduced by as much as 2.1 million gallons on days of high leeward demand. This would mean reductions in their base flows to 6.6 mgd for Waiahole and 3.5 mgd to Waianu.

Keeping Score

A score sheet found at the conclusion of the commission’s decision and order provides an indication of where the commission’s sympathies lay. This summarizes how the commission dealt with the recommendations of each of the 10 contestants submitting proposed findings of fact. Campbell Estate, one of the major leeward O`ahu parties, did well: of 51 proposed findings, Miike accepted all but two. On a percentage basis, Robinson Estate, another leeward landowner, did even better: all five of its proposals were accepted. Dole/Castle & Cooke fared pretty well: six of its 11 proposed findings made their way into Miike’s own proposals. Nihonkai, another leeward party, scored six of eight tries; Pu`u Makakilo 41 out of 43.

Kamehameha Schools/Bishop Estate gets credit for ambition: it submitted no fewer than 73 proposed findings of fact in support of diverting windward water. Of those, 44 were accepted. The City and County of Honolulu proposed 15 findings in support of diversions to leeward; all but one were accepted.

Windward parties did not fare as well. Of the 39 proposed findings of fact submitted by counsel for the Waiahole-Waikane Community Association, Hakipu`u Ohana, Kahalu`u Neighborhood Board and Ka Lahui Hawai`i, less than a third – 12 – may be found in Miike’s report. And batting zero was Hawai`i’s Thousand Friends, allied with the windward parties. Of the nine proposed findings it submitted, Miike accepted not one.

(For more background on the Waiahole contested case, see the summary in the November 2000 issue of Environment Hawai`i, available on the internet at [url=https://www.environment-hawaii.org/2000.htm.)]www.environment-hawaii.org/2000.htm.)[/url]

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Moloka`i Decision Favors Resort

The Water Commission also wrapped in December a contested case hearing on the use of water by a resort in west Moloka`i. The Department of Hawaiian Home Lands and several other parties had contested the request of Kukui Moloka`i, Inc., to obtain a water use permit for just over 1 million gallons a day. The resort’s use was challenged on the grounds that it could lead to depletion of the aquifer and interfere with the DHHL’s reservations to use underground water and that the use was not “reasonable and beneficial,” among other things.

The commission, following the recommendation of the appointed hearing officer, Peter Adler, granted Kukui Moloka`i’s request for permitted uses totaling 1.018 mgd. Given that withdrawals from the Kualapu`u Aquifer, source of the water, are nearing the 5 mgd sustainable yield, eight special conditions were imposed. The first of these allows “any party” to petition the commission for a show-cause hearing if “significant or unexpected increases in chlorides or drawdowns” occur in the aquifer – signs that the aquifer may be in danger of degradation. The second requires the resort to reuse water generated in backwashing filters for irrigation of the golf course. Other conditions require repairs of leaks in the water distribution system, conservation through xeriscaping and other means, and education of condominium owners in the need to conserve water, among other things.

The findings of fact, decision and order for both the Waiahole and the Moloka`i cases are available on the internet; follow the “public information” link on the Water Commission’s home page: [url=http://www.state.hi.us/dlnr/cwrm]www.state.hi.us/dlnr/cwrm[/url] The contested-case documents are under the “special topics” heading.

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New Commissioners

The Water Commission has two new members: Meredith J. Ching, who replaces Buddy Nobriga as representing Maui interests, and Clayton W. Dela Cruz, who replaces Robert Girald as the Kaua`i (and ILWU) representative.

Ching, vice president for government and community relations at Alexander & Baldwin, is well-known in water circles for her advocacy on behalf of A&B and its subsidiary, East Maui Irrigation. EMI operates ditches that constitute one of the largest diversion systems in the world, carrying water from the wet eastern slopes of Haleakala to the dry but fertile fields of the Central Maui isthmus, where A&B has the state’s largest remaining sugar plantation.

Dela Cruz is director of the Kaua`i division of the International Longshoremen’s and Warehousemen’s Union Local 142. His predecessor on the commission, Girald, also works for the ILWU as local vice president.

Both new members, appointed by Governor Ben Cayetano, are subject to confirmation by the state Senate later in the legislative session.

— Patricia Tummons

Volume 12, Number 8 February 2002