Whether or not Castle & Cooke Resorts illegally used potable water to irrigate its Manele golf course is now moot, much to the relief of Castle & Cooke Resorts, LLC, and to the chagrin of the citizens’ group Lanaians for Sensible Growth (LSG).
On January 8, after more than 15 years of litigation that reached as high as the Hawai`i Supreme Court, the state Land Use Commission unanimously, without discussion, and, some say, hastily, voted to adopt Castle & Cooke’s July 2007 proposal to modify Condition 10 of its 1991 boundary amendment, which the company allegedly violated when it began using brackish water from the island’s high-level aquifer to water its golf course.
How will this ruling affect the future of Lana`i’s modest freshwater aquifer? Depending on whether or not Lanaians for Sensible growth appeals the decision, which had not been officially released by press time, it means that Castle & Cooke may, for now, continue to lavish water on its Manele golf course. But should there be a drop in the aquifer’s recharge from fog drip, or overuse of certain wells, or additional construction in the Manele area without a corresponding reduction in the rate of water use, the state Commission on Water Resource Management would likely step in, according to an official with the agency.
But for now, he said, the aquifer does not appear to be in danger.
Caught in the Act
The dispute over Lana`i’s high-level aquifer revolves around promises Manele golf course developer Lana`i Resort Partners made during the process of redistricting 139 acres of agricultural and rural land to the Urban District, as well as the language used in Condition 10 of the LUC’s 1991 Decision and Order approving the company’s petition.
Company representatives stated at the time that no water from the high-level aquifer would be used on its golf course and that it would develop alternative sources of irrigation. The LUC’s Condition 10 prohibited the company from irrigating the golf course with potable water from Lana`i’s high-level aquifer. The aquifer is the island’s main source of drinking water and has a sustainable yield of 6 million gallons a day (3 mgd each from the Leeward and Windward sections). Condition 10 required the company to develop alternative, non-potable sources of water, e.g., reclaimed effluent.
Within a year of the LUC’s decision, Lana`i Resort Partners began watering the golf course with more than 500,000 gallons per day (gpd) of brackish water from the high-level aquifer, prompting Lanaians for Sensible Growth, as well as the LUC and Maui County, to cry foul.
In its defense, Lana`i Resort explained that when some of its representatives had promised not to use “high-level aquifer water” they really meant “potable water.” The company also said it was well known during the commission’s proceedings that it intended to use brackish Wells 1 and 9, which are located in the high-level aquifer. Unswayed, the LUC issued in October 1993 an order to show cause why the 139 acres should not revert to their prior classification in light of the apparent violation of Condition 10. After holding hearings on the matter, the LUC issued an order in 1996 requiring the company to immediately cease and desist using water from the high-level aquifer for golf course irrigation.
In 2004, however, the Hawai`i Supreme Court found that the LUC had erred in its decision, noting that regardless of what the LUC had intended, the language used in Condition 10 does not prohibit the use of any high-level aquifer water, just the aquifer’s potable water. Because the LUC had not clearly defined “potable” in its 1996 decision, the court remanded that issue back to the commission.
In 2006, the LUC held hearings on the definition of potable, but halted them before Lanaians for Sensible Growth could present its case. Settlement discussions followed and failed. But instead of resuming hearings on the alleged violation, the LUC veered in another direction, choosing instead to hold hearings on motions filed in mid-2007 by the state Office of Planning (OP) and Castle & Cooke to modify Condition 10.
Petitions to Modify
In its motion, filed on behalf of Castle & Cooke by attorney Bruce Lamon, the company proposed replacing the language in Condition 10 with language prohibiting potable water from the high- level aquifer from being used for irrigation of the golf course, driving range and other associated landscaping. The company would also be prohibited from using more than 650,000 gpd of non-potable water or “such other reasonable withdrawal as may be determined by the Maui County Council” for golf-course-related irrigation.
Castle & Cooke also proposed including language defining potable water as “surface water or groundwater containing less than  milligrams per liter chlorides and which can be disinfected to satisfy standards set forth in the State of Hawai`i Department of Health rules chapter 20 entitled ‘potable water systems’ and maximum contaminant level goals and national drinking water contaminants.” This language, Castle & Cooke’s petition stated, was substantially identical to the requirements of the Maui County Code at the time and reflected the status quo over the previous 14 years.
Finally, Castle & Cooke proposed dissolving the LUC’s 1996 cease and desist order, which would moot the remand proceedings.
The OP’s motion was a bit more complicated, calling for a variety of conditions, including chloride testing, adherence to county golf course ordinances, and irrigation restrictions depending on overall groundwater use, among other things.
More than two years passed without any hearings on these motions, but on December 15, 2009, the Office of Planning drastically revised its motion based on recent changes to the Maui County Code.
The revised motion recommended prohibiting the irrigation of the Manele Golf Course with ground water if the chloride concentration at the well head is less than 250 mg/l for three consecutive water report periods, until the chloride levels in the affected well rise above 250 mg/l for three consecutive water report periods. The total amount of ground water used to irrigate the course should not exceed 650,000 gpd, the motion said.
And by January 2, 2012, the OP recommended, Castle & Cooke must submit to the commission an analysis of well efficiency, an audit of the transmission system, and an updated ground water model.
The Maui County Code, the OP explained, had previously prohibited Castle & Cooke from using water with a chloride level below 250 mg/l to irrigate the golf course. But last September, the County Council repealed that prohibition and instead prohibited water which met DOH drinking water standards from being used on “new golf courses.” Because the code no longer defines what counts as non-potable water, the OP continued, it “does not give ‘fair warning of the conduct the government prohibits or requires.’”
With regard to LSG’s efforts, OP director Abbey Seth Mayer also argued in the motion that reverting the 139 acres to the Agricultural and Rural districts would provide no effective relief to the aquifer. He wrote, “One might argue that the  Decision and Order should not be amended, and further hearings should be held to ultimately result in the reversion of the Petition Area to its original…classification. But with the exception of possibly three holes of the golf course, the original classification of the petition area was rural. Golf courses, golf driving ranges, and golf-related facilities are allowed in the rural district. Although [Castle & Cooke] may be inconvenienced in reconfiguring three of the golf course holes, reversion of the property is likely to merely eliminate the various protections, mitigation measures, and conditions contained in the 1991 Decision and Order, and will not stop the continued operation of at least 15 holes in the existing Manele Golf Course or the use of approximately 650,000 gpd of water from the high-level aquifer.”
Mayer explained that the recommended system audit and model update would address community concerns that Lana`i’s water distribution system is inefficient and antiquated and that new information suggests that the golf course irrigation is affecting or might some day affect the availability of water for domestic use.
The Commission on Water Resource Management published the most recent model study in 1996. It concluded that withdrawing 650,000 gpd from Castle & Cooke’s Wells 1 and 9 would have a relatively small impact on upslope wells and, in any event, such an impact would be difficult to differentiate from natural water level changes.
A new study using more recent data and newer methods is necessary to determine whether the 1996 findings are still valid, Mayer wrote.
“After receiving this information, the parties can then move to amend the interim chloride standard based upon objective facts and a sound record…. [I]t will be a much wiser use of resources for the LUC and all of the parties than re-opening lengthy evidentiary hearings whose aim is determining the thought processes of a Commission that deliberated nearly 20 years ago, especially considering that reversion provides no effective relief. In essence: look forward, not back,” he wrote.
Both LSG and Castle & Cooke opposed the OP’s recommendations. LSG, represented by Native Hawaiian Legal Corporation attorney Alan Murakami, argued in its motion in opposition that the LUC’s consideration of the proposal ignores the Supreme Court’s mandate, and that, in any case, the OP has no basis to file a motion, since it was not a petitioner in the case. LSG added that the OP’s proposed revision to Condition 10 would “unjustifiably continue to compromise the sustainability of the high level aquifer.”
Castle & Cooke was concerned that the OP’s conditions would allow the dispute over Condition 10 to drag on. Both of the 2007 motions sought to moot the litigation by defining potable for the purposes of Condition 10, the company wrote. “Castle & Cooke therefore views with alarm the revised motion submitted by OP on December 15, 2009 (which proposes for Castle & Cooke to bear the expense of a water analysis, audit and study update, whereafter within two years the parties may come back to the LUC for further modifications to Conditions 10). While the OP’s motion proposes an ‘interim’ definition of potable (less than 250 mg/l), it is a temporary solution that invites continued and never-ending debate on redefining a standard for use of water that Castle & Cooke originally relied upon in investing hundreds of millions of dollars in development of the Manele Bay Golf Course, the Manele Bay Hotel, and the Manele residences within the Manele project district.”
‘The sky is not falling’
According to Murakami, there are three reasons why water levels in some of the potable wells are declining: they are being over-pumped, more water from the makai brackish wells is being used, and the recharge is not occurring at a rate as fast as it used to.
The motion from the OP suggested that the LUC should require a new study to determine the actual effects, both past and ongoing, of Castle & Cooke’s golf course wells on the high-level aquifer over the past 16 or so years. The company, however, argues that current data show there is no reason to curtail water use.
“The sky is not falling,” Lamon wrote in Castle & Cooke’s memorandum opposing the OP’s revised motion. “The latest variation on LSG’s refrain of gloom and doom is based on recent ‘revelations’ and ‘stunning news’ in the October 19, 2009, County of Maui draft Water Use and Development Plan [which describes gradually declining water levels and exorbitant water use in the Manele area]. This, on close examination, consists entirely of LSG’s demonstrably false speculation that irrigating the golf course is ‘likely deteriorating conditions’ in potable water wells.”
Lamon disputed LSG claims that an 80-foot drop in the pump level of Well 8 – a potable water well – over the last 13 years is the result of golf course irrigation. He wrote that water levels in Well 8 and Well 6 (another potable well) have been dropping since they were first put into use in the 1990s. What’s more, he wrote, the water level in Well 3 – located between the makai golf course wells and the mauka potable wells – is higher than the water level in the makai wells.
“For Palawai [where the course is located] irrigation pumpage to have an effect on Wells 6 and 8, the water level in Well 3 would have to be drawn to a level below the levels in Wells 6 and 8,” he wrote. He added that the water level in Well 6 has recovered and stabilized since pumping of that well was reduced in late 2008.
“This demonstrates that its pumping rate, and not that of the Palawai wells, controls its water level response,” Lamon wrote.
According to the Water Commission’s Charles Ice, a geologist who monitors the use of Lana`is wells, Lamon is correct.
Ice notes that lowering the pump in Well 8 by 80 feet was necessary because high-level aquifers, by their very nature, don’t recharge as quickly as basal aquifers and the well was being used a lot. Because water is compartmentalized by dikes and is not free-flowing, as it is in basal aquifers, “it takes longer to bounce back” from pumping, Ice says.
With regard to Murakami’s concern that golf course irrigation is affecting the potable mauka wells, Ice says, “We just don’t see that connection at all…. There is some leakage between compartments within the aquifer, but the amount is unknown and unknowable.”
While the Water Commission seems comfortable holding off on designating Lana`i as a groundwater management area, which would force all water uses to be permitted, Murakami says that one of the most important criteria for designation – pumping of 90 percent of the sustainable yield – is perhaps too high.
“You can’t do that with a small aquifer like Lana`i,” he said. “Potable levels are falling; the recharge is not the same.” (According to a November 2008 presentation to the Lana`i Planning Commission by the University of Hawai`i at Hilo’s Jim Juvik, however, the Lana`i forest is collecting about as much water today as it was in the 1950s.)
Although water use has not reached “actionable” levels in the eyes of the Water Commission and others, there are problems, to be sure. The rate of water use in the Manele Project District, for example, is, by most accounts, excessive.
The October 2009 draft Water Use Development and Protection plan notes that a 1997 allocation agreement among members of the Lana`i Water Working Group limited total potable and brackish water use for the Manele Project District to 1.03 mgd. Even so, “demand in Manele exceeds the agreed-upon allocation. Metered demand in 2008 was 1,082,999 gpd. Pumped demand was 1,626,573 gpd. To date, only 16 single family units of 282 units permitted under the Project District ordinance have been built and are consuming water. Thus, the project is not even close to full build-out.”
Murakami adds that the Manele area accounts for two-thirds to three-fourths of all of the water used on the island, and, at 29.21 percent has the highest percentage of unaccounted for water use. According to the draft plan, the average customer in Lana`i City uses 221 gpd, while in Manele, it’s 3,700 gpd (2,800 of which is for irrigation).
“And the projection is, they’ll be using a lot more,” Ice says, adding that the rate of use at Manele is “far above what they said is an appropriate standard to use.” (Maui County has a single family unit standard of 600 gpd.)
In addition to the extraordinarily high water use, the distribution of that use among the aquifer’s wells leaves something to be desired. According to the Water Commission’s numerical groundwater model for Lana`i, many more wells are necessary to achieve the sustainable yield of 6 mgd, “assuming that long term recharge conditions in the regions above 2,000 feet remain stable.”
The draft WUDPP notes that in setting the sustainable yield, the model assumed water would be pumped from 13 sources, but is now only spread among six or seven.
“More than 85 percent of 2008 water withdrawals on Lana`i, 1,913,310 out of 2,241,222 gpd, came from the Leeward aquifer. All near-term plans…to develop water are also in the Leeward aquifer. The only pumping well in the Windward aquifer is Well 6….It is unlikely that more pumpage could be distributed to this well, because water levels are already declining,” the plan states.
Given the current use of wells, Ice says he is concerned that a single high-level well will be pumped for a long period of time and not be given a chance to rest. “Rather than try to use all different wells, [users] try to rely on those that they need right away, pressing them against what they can handle,” he says.
The fact that the current well system has neither been managed nor configured for sustainable use is one of LSG’s reasons for seeking an end to the use of brackish wells for irrigation. In some of his filings to the LUC, Murakami argued that contaminant-free water with less than 250 mg/l (or parts per million or ppm) chlorides should not be the standard of potable water. He noted that the United Nations World Health Organization has a guideline of 500 parts per million, and Maui County has for years used at least two wells in its municipal drinking water system that pump water with chloride levels higher than 400 ppm.
“Moreover, as is commonplace in other areas, where municipal water agencies have stretched potable water supplies by blending water below and above 250 ppm, there is no reason why the water from Wells 1 and 9 [which have chloride levels 325 ppm and 450 ppm, respectively] couldn’t be similarly blended to achieve the EPA standard,” he wrote in his most recent memorandum, adding that the county’s September decision to repeal the chloride standard is evidence that the county agrees with his interpretation of potability, “after years of denying it.”
While Lamon countered in his motion that Murakami’s argument effectively erases the distinction between potable and non-potable, Ice concedes that, in the long-term, should climate change or other factors reduce the ability of the Lana`i watershed to recharge the high-level aquifer, the use of its brackish wells for golf course irrigation would become a concern.
In the days following the LUC’s decision, LSG members Robin Kaye and Butch Gima both complained to the local newspapers about how the vote went down.
“It was democracy at its worst: a powerful bureaucratic government entity treating a community rudely and with disrespect,” Kaye wrote in a letter to The Maui News.
He criticized the commission for scheduling a little more than three hours to hear argument and public testimony from more than a dozen members of the community. He also found fault with the behavior of some of the commissioners.
“You could clearly see some commissioners weren’t paying attention,” he told Environment Hawai`i.
After an executive session, Kaye wrote, “They come back, and while the four attorneys are pleading their views, many of the LUC commissioners are either playing with their cell phones, nodding off, or checking their watches… [Murakami] provided the closing argument, and the community watched as he was forced to rush through his presentation — all while many of the commissioners were noticeably collecting their papers and getting ready to depart….
“Just two of the seven commissioners ask a couple of questions. There is no discussion of the case at hand — NONE. Commissioner [Lisa] Judge – the one who arrived about 30 minutes late – then reads what was clearly a previously written, long, complicated, multi-part motion, and the commission unanimously agrees…., leaving many Lanaians to suspect that it had been composed before the hearing even began. The LUC then quickly left – on a Castle & Cooke bus.”
When asked about the LUC’s decision, commissioner Judge told Environment Hawai`i that she had been advised by attorneys not to comment because it was still a pending matter.
For further reading
These articles, available on our website (www.environment-hawaii.org), provide more background on the dispute over Lana`i high-level water. Full access is available to current subscribers only; others may purchase a two-day pass for $10.
- “Dispute over Water Pits Dole Food against State, County, Lana`i Citizens”
- ”High-Level Aquifer Is at Heart of Dispute”
- “LUC Record Provides Slim Support for Company’s Present-Day Claims”
- “LUC to Vet Potable Water Issues Surrounding Manele Golf Course”