How much water does Lana’i have? And is that enough to support the kind of development that David Murdock has planned for it?
These two questions are at the heart of a dispute that has pitted Murdock’s Dole Food Company and its subsidiaries charged with developing Lana’i against the state Land Use Commission, the citizens’ group Lanaians for Sensible Growth, and the Maui County Council.
Both the state LUC and the Maui County Council issued approvals for the golf course at Manele subject to conditions intended to ensure that no water from the island’s only fresh-water aquifer would be used for irrigation. Separately, an agreement between Dole’s Lana’i Company and Lanaians for Sensible Growth also stipulates that no water from the aquifer would be used for golf course maintenance or operations.
Yet for the last year, water – some 800,000 gallons a day – from the high-level aquifer has been used in the construction and irrigation of the recently opened Manele golf course.
The Lana’i Company defends its use of the water, claiming that from the outset, it intended to irrigate the golfcourse with high-level brackish water and that it said as much – albeit at times in imperfect language.
To everyone else involved in the proceedings, however, the company’s use of the high-level water clearly violates both the spirit and the letter of the various approvals and agreements.
Changing Demand
Pineapple cultivation began on Lana’i in the 1920s and quickly became the predominant commercial crop. The island’s resident population held stable for years at about 2,000 people. The amount of water drawn from the island’s one aquifer varied from year to year, depending on rainfall. On average, however, between 1948 (the year when wells were first pumped) and 1982, fresh-water consumption was about 1.5 million gallons per day. From 1983 to 1991, when pineapple was phased out, average daily use rose to 2.93 million gallons a day, with the increase attributable to the introduction of full-time drip irrigation of pineapple fields, combined with drought conditions.
Estimates of the amount of water that can safely be pumped from Lana’i’s aquifer (an amount known as the sustainable yield) hover around 6 million gallons per day (mgd) – although some recent estimates are much lower. So long as pineapple was the island’s sole economic base, the aquifer seemed in no danger of being drawn down at a rate faster than it could be recharged.
In 1983, the Castle & Cooke Company received approvals from Maui County for a change in the Lana’i community plan calling for project districts for two hotels on Lana’i. The company’s argument then was that economic diversification was necessary for the ongoing financial viability of its Lana’i operations. Still, by 1985, when David Murdock purchased a controlling interest in the company, no work had begun on the hotels.
That changed quickly. In short order, construction began on the Lodge at Koele and the Manele Bay Hotel. Over the next several years, Castle & Cooke – whose name Murdock later changed to Dole Food Co. – petitioned for county and state approvals of golf courses and additional housing at both Koele and Manele. In the meantime, it announced an end to pineapple cultivation on the island, dashing thereby any lingering hopes Lana’i residents might have had of diversifying the island’s economic base.
Defensive Measures
The dispute over the use of the high-level aquifer has its origins in 1989. In November of that year, the Lana’i Company petitioned the state Land Use Commission for a boundary amendment to expand the area of the Manele resort by 319 acres. While the Manele project area initially included lands for housing, the Lana’i Company sought in this petition to expand the area available, increasing by nine (to 425) the total housing units, while decreasing the housing density and adding a golf course.
Little opposition to the project was anticipated from the Lana’i community, nearly all of whom depend directly or indirectly on Dole for their income. However, the group Lanaians for Sensible Growth, spearheaded by a few independent souls, had the potential to stall needed approvals by administrative challenges at the county and state levels. In 1987, the Lana’i Company had entered into an agreement with Lanaians for Sensible Growth calling for the company to protect public access to the Hulopo’e and Manele shorelines (among other things), in return for which the Lanaians would not oppose issuance of county Special Management Area permits for the Manele Bay Hotel.
In 1990, the Lana’i Company and Lanaians for Sensible Growth executed a second agreement this time with Lanaians for Sensible Growth and the Office of Hawaiian Affairs, as an additional party, agreeing to withhold their opposition to the redistricting of land for the Manele golf course. In return, the Lana’i Company agreed, among other things: to prepare an environmental impact statement covering both the expanded residential development as well as the golf course; to protect the Class AA waters fronting the golf course and the hotel; to “ensure that no high-level ground water aquifer will be used for golf course maintenance or operation”; and to “dedicate a public easement along the accessible cliff coastline.”
The Conditions
Eventually, the Manele expansion was divided into two separate applications: the 1989 application to the LUC was amended to cover only the 139 acres needed for the golf course; a second application, covering the 320 acres sought for the expanded housing area, was made in 1992.
The first application (LUC Docket No.89-649) won Land Use Commission approval in April 1991. LUC action on the second one (Docket 92-674) is pending.
When the golf course expansion petition was discussed at hearings of the Land Use Commission, the Lana’i Company’s agents were questioned exhaustively on the matter of where the water for irrigation would be found.
Company representatives stated at the time that “alternate” sources would be used – alternate, that is, to the high-level aquifer. The description of the alternate sources was provided in the company’s Water Resources Development Plan, prepared by M&E Pacific. Alternate sources, the plan states, “are considered here to mean water resources outside the high level aquifer, in particular, low level fresh and brackish waters believed to underlie the Palawai Basin and beyond. Alternate sources also include reclaimable sewage effluent suitable for landscape irrigation.”
(At that time, the boundary of the high-level aquifer, as described on hydrologists’ maps, cut across the Palawai Basin, which lies between Manele and Lana’i City. Thus, water under some of the more makai portions of the basin was thought to be part of the basal aquifer, while water under the more mauka portions was part of the high-level aquifer. Since then, drilling by the Lana’i Company has determined that the actual boundary of the high-level aquifer extends farther seaward than first thought.)
According to the plan, “The alternate sources are a significant part of the overall water resources development plan, especially in anticipation of the fact that close to 80 percent of the demand for future water is estimated to be for irrigation.” The plan goes on to suggest that the brackish, basal aquifer, if developed, might have a sustainable yield as high as 3 million gallons a day, or almost four times the amount needed for golf course irrigation.
In April 1991, the LUC approved the land redistricting, subject to several conditions. Condition 10 deals with water: “Petitioner shall not utilize the potable water from the high-level groundwater aquifer for the golf course irrigation use, and shall instead develop and utilize only alternative non-potable sources of water (e.g., brackish water, reclaimed sewage effluent) for golfcourse irrigation requirements.”
County Concerns
Goro Hokama, chairman of the Maui County Council, has represented Lana’i at the county level since 1959. Initially supportive of resort development, he has grown more skeptical since the phaseout of pineapple and the disclosure of plans for developing exclusive, luxury housing. When the Lana’i Company came before the county with a request for a change of zoning needed for the golf course, therefore, Hokama made certain language protective of the high-level aquifer was inserted into the enabling ordinance.
As approved by the council in July 1992, the ordinance states: “No high-level groundwater aquifer will be used for golf course maintenance or operation (other than as water for human consumption),” and “all irrigation of the golf course shall be through alternative non-potable water sources.”
Dry Holes
At the time the LUC was holding hearings on the golf course request, the Lana’i Company had not confirmed the sustainable yield of any basal well, but its agents seemed confident that basal wells would provide water in the quantity and quality needed for irrigation purposes.
According to testimony to the LUC by James Kumagai of M&E Pacific, as many as seven wells might have to be drilled to find adequate irrigation sources. The Lana’i Company drilled three – wells 10, 12, and 13 – and, according to LUC records, it spent more than a million dollars in the effort to find a good source of brackish basal water.
It was to little avail. Well 12, a basal well, may yield up to 250,000 gallons per day under optimum conditions, although Vince Bagoyo, the former Maui council member who now runs the Lana’i Water Company, told the LUC he felt a more reasonable figure was 140,000 gpd. Well 10, in the high-level aquifer, was so salty as to be unfit for irrigation use. Well 13, meanwhile, was a dry hole.
For construction and irrigation of the Manele golf course, then, the company fell back on wells 1 and 9. These wells draw water from the high-level aquifer, the company acknowledges, but the water is brackish – by the company’s definition, at least.
Belated Disclosures
In April 1992, the Lana’i Company made its first yearly report to the LUC on compliance with conditions attached to the golf course approval. With respect to Condition 10, the company reported that it “has identified over one million gallons of source of brackish water to be used for golf course irrigation. This is approximately a 25 percent increase of available nonpotable water for irrigation over Petitioner’s budgeted water usage for the golf course and approximately 50 percent increase of available water for irrigation over the usage projected by petitioner’s golfcourse designer.”
The company did not identify the source of the water – that is, whether it was high level or basal or reclaimed. For the remainder of the year, the matter of withdrawal of irrigation water from the high-level aquifer did not draw the attention of either the Land Use Commission or the Maui County Council.
In February 1993, however, the issue broke into the open. On February 11 and 12, Ron McOmber, president of Lanaians for Sensible Growth, attended LUC hearings on the Manele housing application. In a letter a few days later to Maui County Council Chairman Hokama, McOmber said: “What we were told is they would not use the water from the high level aquifer but now we are seeing new charts that show they intend to use non-potable high level water at the rate of 550,000 gpd [gallons per day].”
What McOmber was referring to was a table prepared by the company in December 1992, indicating water demand on Lana’i and the sources that would be tapped to meet it. For the first time, the company made a distinction between high-level potable and high-level non-potable water, with wells 1 and 9 shown to be in the latter category
For McOmber, the news was that wells 1 and 9 which he had long known to be high-level wells, were being used for golf course irrigation.
For Brian Miskae, the county planning director, the chart represented the first clear disclosure that Well 9’s high-level water and that high-level water will be used for the golf course.
“In other words,” Miskae wrote in a March 12, 1993, letter to Thomas Leppert, Lana’i Company president, “More than half a million gallons per day of the island’s total 6 mgd sustainable yield is committed to golf course irrigation.”
Damage Control
Within days of Miskae’s letter, Leppert paid him a call. But, in a follow-up letter, Miskae indicated he had not been swayed from his original position. “Based on our findings and on your previous representations, Lana’i Company, Inc., or any of its assigns shall not utilize any water drawn from the high level aquifer for golf course construction, dust control or irrigation purposes as it would relate to the Manele golf course. Use of water from the high level aquifer for purposes other than human consumption will jeopardize your grading permit for the Manele golf course project.”
Kevin Shaney, an attorney for the Lana’i Company, responded to Miskae this time, claiming that in the agreements and discussions referred to by Miskae, the term “high level aquifer” had been used by lay people who lacked a clear understanding of what was meant by the term- an argument that would later be made to the Land Use Commission as well.
Guy Haywood, Maui corporation counsel, rebuffed Shaney in a letter of March 29, 1993. “Our office,” Haywood wrote, “takes no position on the development of the Manele area, the use of non-potable water for the construction of the golfcourse or the impacts of same on any aquifer. We simply read the language of the ordinance and found it to prohibit certain conduct.” The language of Ordinance 2132, he wrote, “is clear and there is no need to review additional documentation or legislation relating to the matter.”
When the matter reached the desk of Mayor Linda Crockett Lingle, the company received a more sympathetic hearing. Lingle decided to allow the company to violate the county ordinance because, she told The Maui News, “we believe the economy of the island is at stake.” As a way of circumventing the ordinance, Lingle asked the County Council to adopt a resolution allowing enforcement of the ordinance to be stayed until December 31, 1993.
The council approved the resolution in May, conditioned upon the establishment of a Lana’i water committee that would monitor the company’s water use. Although it was hoped at the time that by the year’s end, a new ordinance would have been enacted to deal with the matter, December 13 passed without any action According to sources in the corporation counsel’s office, a draft bill to amend the ordinance has been bounced between the council and the corporation counsel’s office for several months now.
Meanwhile, at the LUC
The dispute over water use at the county level inevitably spilled over into the Land Use Commission’s ongoing hearings on the Manele residential petition. At the May 12 hearing, Commissioner Renton Nip stated, with regard to the company’s interpretation of Condition 10. “I recall the testimony being that there would be an alternative source of water that would be developed for the golf course… I certainly did not think at the time the condition was imposed that we were saying, “Well, [the company] could use non-potable water from the high-level aquifer. Because in the back of my mind I also recall testimony … where there is some risk about withdrawing non-potable water from a high level aquifer.” Other commissioners agreed with Nip’s recollection.
At the hearing the following day, the Lana’i Company’s water expert, Tom Nance, was grilled over his testimony that “the common perception by people on Lana’i and elsewhere” was that the brackish high-level water being used for irrigation “is not ‘high level’.”
“Unfortunately,” Nance stated in his written testimony, “terminology sometimes used in the past in describing these wells has led to some misunderstanding by non-technical people.”
Finally, last October, the Land Use Commission issued an extraordinary order to the resort developer, requiring it to show cause why the company should not be held in violation of the conditions attached to the golf course boundary amendment. Hearings on the order were held last December, during which members of the commission showed little sympathy for the company’s defense of its interpretation of the LUC restrictions on water use.
Two weeks after the hearings were continued, the resort developer formally asked the LUC to modify the condition so as to allow continued use of high-level water for irrigation purposes. A hearing on that request has been scheduled for this month.
— Patricia Tummons
Volume 4, Number 8 February 1994
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