Consensus Weak, Divisions Strong In Stream Protection Task Force

posted in: July 1994, Water | 0

In May, after a year’s worth of meetings, hearings, and agonized discussion, the Stream Protection and Management Task Force, appointed by the state Commission on Water Resource Management, released a report on its recommendations and suggestions.

At about the same time, the staff of the Water Commission released a set of recommendations for stream protection and management, based on the work of the SPAM Task Force. And, were that not enough, the Sierra Club Legal Defense Fund released its own report on the SPAM Task Force.

The whole of these reports is larger than the sum of the parts. What emerges is a picture of a task force that accurately reflects the diverse approaches of three distinct user groups to the state’s streams: that group which regards streams as an economic resource (tapped when their water is diverted into irrigation ditches); the group that regards streams as valuable for the biological resources they support; and the group that values streams for their integral role in supporting Hawaiian culture.

What emerges, in other words, is a picture of a task force riven in two. On the one hand were those for whom streams have value only to the extent that they are no longer streams (that is, to the extent that the water can be taken from them). Opposed to that view were those whose values are advanced when water is not diverted from streams.

Minimal Agreement

The SPAM Task Force was established to comply in part with the requirements of the State Water Code (Chapter 174C, Hawai’i Revised Statutes) and in part to respond to the wishes of the state Legislature as expressed in Senate Concurrent Resolution 130 of the 1992 session. The Water Code requires the commission to “identify rivers or streams, or a portion of a river or stream, which appropriately may be placed within a wide and scenic rivers system, to be preserved and protected as part of the public trust.” The legislative resolution directs the commission “to finalize, adopt, and put it to place the stream protection system, including designation of streams to be protected pursuant to state or federal law.”

Early on in the task force’s life, it adopted a “Vision statement” to guide its work: protect Hawai`i’s stream ecosystems; to protect beneficial uses; to ensure coordinated management of Hawai`i’s streams; to provide predictability in management and decision making; and to incorporate Hawaiian customs and value into all aspects of stream protection and management.” Uniting behind specific recommendations that would help the state make this vision manifest proved a far more elusive and difficult task.

Task Force member Alan Murakami, attorney with the Native Hawaiian Legal Corporation, wrote in the report of the letdown he experienced during the group’s deliberations. “I was disappointed with the narrow scope of the report,” he wrote. “Our differences prevented us from exploring alternative recommendations that would have been useful for confronting some of the more vexing issues, like stream flow restoration, that the Commission faces. Even after I believed we had reached agreement, one of the members of the task force made belated substantial changes to the draft consensus report, after termination of our meetings, that were inexplicable. In the end, I was disappointed that financial interests were overriding the initial good faith commitment we had made to protect and conserve stream resources.” (The member who made substantial changes to the consensus is widely thought to be Meredith Ching, a vice president of A&B Hawai’i.)

Self Criticism

A total of 12 “consensus recommendations” are set forth in Section II of the SPAM Task Force report. In Section III, “Suggestions,” individual Task Force members offer what amounts to a radical critique of the consensus recommendations from the standpoint of the particular user group they represent. Contrasting the bland and, some might argue, innocuous consensus recommendations to the sometimes blistering critiques found later on in the same report is an exercise that reveals the depth of the chasm separating the various interests.

Nothing can substitute for a review of the several reports themselves. (Copies of the SPAM Task Force report and the staff report may be obtained from the Commission on Water Resource Management; call 587-0214 on O’ahu for more information. Copies of the SCLDF critique may be requested from that office; 599-2436 on O’ahu.) What follow are just a few examples that illustrate the gulf between the compromise language of the recommendations and the blue-sky wishes of the SPAM Task Force participants.

Heritage Streams

Peter Adler, who mediated many of the Task Force meetings, states in an “open letter” to the Task Force (included in its report) that its “proposal for a new category of streams called ‘Heritage Streams’” will be the legacy for which the Task Force will be remembered.

The consensus recommendation sets forth criteria for determining such heritage streams. They shall include perennial streams that have no functioning diversion structures and which “support viable populations of native amphidromous1 species as evidenced by significant recruitment or by significant spawning” of several species of ‘o’opu (native gobies) or other native fish or shrimp.

Murakami objected to the vagueness of “significance” in this definition. “This a term that is not defined scientifically in these recommendations and could lead to uncertainty.” In addition, he recommended restoring language that had been deleted “in the final stages of deliberations” and indicated his support of “the benchmark originally proposed to determine the existence of diversion structures.” Without that benchmark, Murakami writes, “there would be no criterion for determining which structures would be covered in identifying Heritage Streams and there would be a rush to create diversion structures so it would disqualify a stream for heritage protection.” Murakami’s proposed language would allow streams to qualify if they had “a limited number of small stream diversions that were not operational as of the establishment of the interim instream flow standard…”

In addition, Murakami would expand the concept of heritage stream to include streams that the Water Commission deems “important for the functioning of local communities dependent on the stream for the protection of those rights traditionally and customarily exercised for cultural, religious, and subsistence purposes by Hawaiians.”

What about Wetlands?

Marjorie Ziegler of the Sierra Club Legal Defense Fund also would have expanded the criteria for designation of heritage streams. In her comments in the Task Force report, she wrote: “Streams that are currently diverted should also be certified as Heritage Streams if they meet the biological criteria set forth in the SPAM Task Force’s consensus recommendations. The Task Force’s consensus recommendations for Heritage Streams do not apply to dozens of diverted streams that support or may support native species, including but not limited to the Hanalei, Wainiha, Waikolu, most of the streams on West Maui including Honokohau, Hanawi and approximately 45 streams on East Maui, Hakipu’u, Waiahole, Waikane, Waihe’e, He’eia, and other Windward O’ahu streams that feed into Kane’ohe Bay.”

Streams that may be diverted but which “support important wetlands, estuaries, and nearshore fisheries should also be eligible for Heritage Stream status,” Ziegler wrote. “Streams supporting Hawaiian waterbirds, migratory shorebirds, and stocks of mullet, aholehole, crabs, etc., are just as important as streams containing o’opu, hihiwai, and ‘opae.”

Andy Yuen of the U.S. Fish and Wildlife Service agreed with Ziegler on the need to include “streams that feed into estuaries or that maintain the hydrology of riparian and coastal wetlands.”

The Upper Reaches

Recognizing that many streams are relatively pristine only above the first diversion structure, the Task Force originally considered a category called “Heritage Segments,” which would have protected streams above the highest diversion. Although there appears to have been some agreement to protect “Heritage Segments” by Task Force members as late as February, it had dropped out by the final report.

Murakimi, Yuen, and Bill Devick of the Department of Land and Natural Resources’ Division of Aquatic Resources argued for restoration of this category in their comments.

So, too, did Sydney Keli’ipule’ole of the Bishop Estate – but, unlike Murakami, Yuen, and Devick, Keli’ipule’ole would have added the following language to the definition of protected segments: “Headwaters sections must be managed not only for habitat protection, but also because they are a major source of water for downstream diversions. Nothing in this classification should be implied to be a taking of or restriction on existing downstream diversions.”

‘Uncategorized Streams’

The management of streams and stream segments that do not qualify as heritage streams was obviously a subject of some dispute among Task Force members. The consensus recommendation under this heading deals only with the modification of stream channels. “Channelization is strongly discouraged,” the recommendation states, “but may be considered on a case by case basis… Bank stabilization maybe considered on a case by case basis only after relocation of the property/activity threatened by the stream flow is considered…”

On one end of the spectrum were the views of Keli’ipule’ole. He would have added a section describing “Diverted Streams and Segments,” consisting of all streams that are not designated in Heritage, Natural Stream Reserve, or Protected Segment categories. Proposed management rules for this category include allowing “new stream bed alterations” and “new or expanded groundwater withdrawal.”

On the other end were the views of Bill Devick. Devick described the consensus recommendations as “a considerable weakening of a proposal drafted by Andy Yuen and me which already represented a major compromise favoring the interests of water users.” Devick went on to propose an “attenuated statement of principles” for the management of streams not incorporated in the Heritage Stream group. Included in that statement was the following paragraph:

“Given the extensive channelization, diversion, impoundment, surrounding urbanization, and other modifications resulting from human activity and associated declines in the abundance and distribution of [Hawai’i’s freshwater] biota, a conservative response to stream regulation and management is most appropriate for the foreseeable future. The operational rule for future decision-making should be ‘no net loss of habitat that supports native biota.”‘

On the matter of channelization, Devick, Yuen, Ziegler, and Murakami all indicated their desire for stronger language than that in the consensus recommendation. Yuen’s statement may be the strongest: “The channelization of streams must end. Land use plans and developments that call for the channelization of streams and the removal of the riparian zone are not environmentally sustainable.”

Restoration

What to do about streams whose flows have been reduced by diversions was another issue that divided the Task Force. The consensus recommendation states: “Although the SPAM members hold strongly opposing views on reallocating currently diverted water, they agree that any reduction in the use of diverted stream waters may represent an opportunity to restore stream flows. However, the benefits of restoration should be weighed with the benefits of using water elsewhere.” The Commission on Water Resource Management is urged to “undertake a stream restoration demonstration project” and to initiate a legal analysis of what restoration would entail.

Murakami weighed in with the most scalding critique of the consensus on this point. “I do not agree that restoration should always proceed on a stream-by-stream or case-by-case basis. The magnitude of current diversions along some watershed areas is so severe that it may take a regional examination of dewatering for the CWRM [Water Commission] to appreciate the impact of those systematic diversions.” Murakami called for the Water Commission to “compel the disclosure of the long-term environmental effects of continued diversions from streams on not only the stream habitat areas, but also the associated estuarine ecologies, and flora.” The water diverter should pay for the study but it would be done by a neutral third party to be selected by the Water Commission. The survey would include the impacts of diversions “on the cultural heritage of the surrounding communities, especially on Hawaiian residents who are attempting to exercise” their constitutionally protected rights.

Ziegler noted that “efforts to restore stream flow have been pending for a few years and have not moved forward, including the CWRM’s initiative to establish permanent instream flow standards for the Maunawili Stream system on O’ahu… Although Commissioners and others have spoken in favor of some form of stream restoration somewhere, none has occurred to our knowledge.”

Community Action

The Task Force consensus recommendations propose establishment of a stream stewardship program that would allow community participation in the management and protection of selected streams. The Water Commission is urged to determine the need, feasibility and utility of establishing long-term watershed councils, since, as the staff report explains, “almost all activities within a watershed can affect a stream.”

The only Task Force member to object to this portion of the report was Meredith Ching of A&B Hawai’i. In fact, this particular item was the only recommendation that she commented upon. “We believe that considerably more discussion needs to take place regarding the role of community based groups or planning efforts,” Ching wrote. “In my opinion, there was not consensus reached on this issue.”

Murakami and Ziegler, on the other hand, urged an expansion of the role of communities in stream protection and management.

The Staff Report

The Water Commission staff recommendations are more far-reaching than the consensus recommendations of the Task Force. On the subject of heritage streams, the staff would allow streams with “limited … diversions” to be included, when they support viable populations of native amphidromous species. In addition, perennial streams “classified as DOH Class 1A waters” (referring to Department of Health regulations on water quality), or “perennial streams that flow into wetlands that serve as critical habitat for endangered waterbirds” would be eligible for heritage stream designation. The staff also recommends protection of the upper reaches of the streams by establishment of a “Heritage Segment” category.

Recommended regulations for management of uncategorized streams follow generally the consensus recommendations on channelization. Among other things, the staff report adds a recommendation that mandatory penalties be imposed for parties seeking after-the-fact permits for stream alteration; includes criteria to be used in determining whether new stream diversions should be permitted; and adds a ‘no-net-loss’ of habitat provision as a guide for future decision-making on applications for stream work.

The staff concurred with the Task Force recommendation that the Water Commission “should seek clarification as to the scope of CWRM’s jurisdiction over pre-Water Code surface water diversions currently under the jurisdiction of the Board of Land and Natural Resources and the Department of Agriculture.” In addition, the staff recommends legislation to create a “Water Resource Protection Fund” for Water Commission projects; to increase the fines that may be levied for violations of statute, rules, or permit conditions; and, if necessary, to acknowledge explicitly the Water Commission’s “responsibility to consider the environmental impact of its decisions outside of defined stream boundaries … along with clearly expressed authority to require corrective action or additional information or to deny permit applications as warranted by those potential impacts.”

The period for public comment on the Task Force report and on the staff’s draft recommendation ends July 15, 1994. The Water Commission is expected to adopt some form of stream protection program, based on staff recommendations and public comment, this fall.

1 Amphidromous species are those that spend part of their lives in the ocean and part in fresh water.

Volume 5, Number 1 July 1994

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