Na Wai Eha

The Maui News
Tuesday, December 04, 2007
By HARRY EAGAR, Staff Writer

WAILUKU - Office of Hawaiian Affairs Chairwoman Haunani Apoliona launched the long-awaited Na Wai Eha contested case hearings Monday by calling for lokahi (harmony) in deciding what to do about Maui's key water sources.

"The key to our position here is consistent with our advisory role," she said, "and that is that the streams should be healthy, the streams should be running. No shortcuts."

OHA joined in a petition filed three years ago by Hui O Na Wai 'Eha and Maui Tomorrow to require the state Commission on Water Resource Management to set in-stream flow standards for Na Wai Eha - the famous "Four Waters" of Iao, Waihee, Waiehu and Waikapu streams.

She said the objective of the petition should be "balance for the people . . . this is a turning point."

The problem is, there are more bidders for the waters of Na Wai Eha than there is water, even though the streams can produce 50 million gallons or more per day of clear, cold water.

Bidders for that water include the county's Department of Water Supply, Wailuku Water Co. and Hawaiian Commercial & Sugar Co., kuleana farmers and those who want the streams left alone as much as possible.

Attorney Isaac Moriwake of Earthjustice, which is providing legal services to Hui O Na Wai 'Eha, quoted a Hawaii Supreme Court statement that a free-flowing stream has "its own value."

Na Wai Eha have not flowed freely for a century, with water diverted for plantations and, nowadays, for domestic use as well.

Apoliona said OHA is not contesting the county's bid to continue using 2.4 million gallons a day of surface water to supplement its tightly stretched groundwater resources to feed the homes and businesses of Central and South Maui.

Attorney Gilbert Coloma-Agaran, representing Wailuku Water, asked Apoliona if she also agreed that Wailuku Water should continue to deliver water to kuleana farmers.

"We are supportive of public trust access," she said.

But a later OHA witness, Oahu taro farmer Paul Reppun, said he thought most farmers would rather "control their own water" than depend on a government or a business to send it through a pipe.

That both OHA and Wailuku Water contend that they are looking out for the kuleana farmer illustrates how complicated this issue is. But it is even more complicated, as contested hearings officer Lawrence Miike explained before testimony began.

This contested case is not just about surface water.

In a separate action, the commission was asked to designate the Iao aquifer's groundwater. That triggers a process by which all existing users have to apply for permits to keep withdrawing water.

They not only must justify their past uses, they also must show why their use is more important than any new use of water.

The Iao aquifer designation was made more than a year ago. The decision about the withdrawal permits is supposed to be made within a year of the action, so it is now running far behind.

Miike explained that both the Na Wai Eha and Iao aquifer questions are going to be examined in this contested case.

Groundwater and surface waters usually are regulated separately, but the state Supreme Court said in the late 1990s in the landmark Waiahole Ditch case that if there is a "direct connection" between groundwater and stream flows, then groundwater users also must seek permits for surface water withdrawals.

The geology of the West Maui Mountains includes lava dikes that block the flow of water falling higher up. Instead of percolating down to become groundwater, some of this "perched water" feeds streams and springs lower down.

"The issues overlapped," said Miike, so they were combined for purposes of taking evidence.

Nearly 100 witnesses have been listed, and only four were heard during the first day's hearing in the Laulima Building at Maui Community College. Miike has scheduled further hearings each weekday at 9 a.m. though Dec. 14, but there is no chance that testimony will be finished then.

For one thing, at least one OHA expert will not be available until January.

Avery Chumbley, president of Wailuku Water Co., predicted it might be March before all the lawyers (there were 11 on hand Monday, not counting Miike) could arrange their schedules to "be in the same room."

After testimony is concluded, sometime next year, Miike must write up his findings of fact and recommendations for the commission.

The commission then will have its own hearings - not quite as extensive as in the contested case but still time-consuming - and make its decisions.

The latter then could be appealed to Circuit Court.

"I think what will happen is that people who are dissatisfied can appeal to the Circuit Court and then on to the Hawaii Supreme Court," said Miike.

The first two days of testimony are being devoted to traditional-and-customary and kuleana users.

Reppun - whose name is on a leading appellate case in state water law, in a challenge of the Honolulu Board of Water Supply - is both.

He testified that a "taro complex" of loi with plants in different stages of development needs around 300,000 gallons per acre per day of cool, clear mountain water.

That's about 10 times as much as the calculated "water duty," or amount required, for taro to grow.

On cross-examination by David Schulheiser, representing HC&S, Reppun said that taro likes to grow with its feet wet, but a still pond is not enough.

Warm water encourages rot and other diseases, and probably apple snails, which he called the second biggest danger to Hawaii taro farmers after shortage of water.

To cool the taro corms, a flow of cool mountain water is necessary. The slightly warmed water is then passed on to the next lower loi or back into the stream, where farmers farther makai can use it again.

But as the water warms, more and more is needed to cool the taro enough. Reppun said some low fields in Hanalei, Kauai, have been measured taking a million gallons a day.

The other testifiers Monday were both from Maui, John Duey and Duke Sevilla. They repeated experiences they have related before at commission meetings.

Duey has lived in Iao Valley since 1969, and he and his family are trying to reopen 18 acres of ancient taro loi. Most days, there is not enough water in Iao Stream where they need it.

But it is not just taro, said Duey, but also stream life that needs a steady flow of water.

"I was naive before" his family's work on the loi, he said. "I didn't know how important maintaining stream flow was. I've been educated."

Duey was one of the founders of Hui O Na Wai 'Eha in 2003 and is president of the organization, which has about 250 members.

Sevilla also described how he learned about stream flow. In his case, it was a sacred spring on family land in Paukukalo.

When he was a boy in the 1950s, he said, "My dad would say, 'Take tutu down to the spring to get water.' "

Sevilla said he "got bold" and demanded to know why his tutu couldn't use piped water.

And she said: "No, boy, this water is spiritual. It keeps me alive."

That spring is now dry, and Sevilla wants in-stream flow standards established so that not only will the streams flow continuously, but springs and seeps will flow again.

Paul Mancini, representing Wailuku Water, said he would defer his opening statement until it is his turn to produce witnesses. However, HC&S lawyer Schulheiser, in his opening statement, indicated one line of argument for maintaining diversions.

"Keep in mind what's in the public interest," he said. "There has been a lot of discussion about the public trust and public rights and resources, but ultimately what has to be considered is what the overarching public interest is."

He cited "good jobs" at HC&S, more than $100 million in operating spending per year on the island and the contribution of bagasse from the harvested cane to producing renewable electricity for the island.