Fact-finding slowing verdict on stream flow, say attorneys

The Maui News
Wednesday, March 12, 2008
By HARRY EAGAR, Staff Writer

HAIKU - The state Commission on Water Resource Management will hold an unusual fact-gathering public meeting on water flows in 27 streams in the East Maui watershed on April 10.

The meeting will be from 5 to 9 p.m. at the Haiku Community Center.

The streams are the subject of petitions filed by Na Moku 'Aupuni o Ko'olau Hui and three East Maui taro growers, represented by the Native Hawaiian Legal Corp., to establish permanent instream flow standards. The petitions seek to re-establish flows in streams in the Honopou, Hanehoi, Piinaau, Waiokamilo and Wailuanui units that are now diverted by the East Maui Irrigation Co. system.

NHLC attorneys Alan Murakami and Moses Haia III said that they consider the special meeting a stalling tactic, but they said Tuesday that they expect to be there to present their view of the rights of Native Hawaiians and other "holders of superior rights" to use of water from the streams, which are now tapped by EMI for Hawaiian Commercial & Sugar Co. and Maui Pineapple Co., and by the Department of Water Supply.

The commission's view, ratified at a December 2006 meeting, is that the fact-gathering meeting, although not required by law, is consistent with the State Water Code and will be helpful in establishing minimum instream flows to protect habitat for native species and to guarantee water to those - such as taro growers - who have priority under the state constitution.

The Native Hawaiian Legal Corp., which filed the petitions to force the commission to set flow standards in June 2001, considers that enough scientific information is available for the commission to act now.

Murakami says that under the law, the commission was supposed to act within 120 days of the petition. The petitioners agreed to a three-year delay for stream studies, completed by the U.S. Geological Survey with assistance from the county and EMI. Two reports based on that work were published in 2005.

Drafts of the studies are to be released by the commission today as part of the process.

"For the last two years, they have had all the scientific information they need," Murakami said.

Haia said the diverters who should be forced to justify their diversions, not the holders of superior riparian and traditional rights.

"The commission should ask them to justify what they are doing, but there is never any requirement for A&B to justify its needs for all its diversions."

This argument is similar to one made by Office of Hawaiian Affairs attorney Pamela Bunn on March 4 as the lengthy oral phase of the contested case over Na Wai Eha (four streams in West Maui) concluded.

Both the Na Moku Aupuni petition for East Maui and OHA and Hui O Na Wai Eha in West Maui contend that the burden should be on the plantations that built the diversions a century or more ago, not on Native Hawaiians or other holders of traditional rights.

Murakami says he was surprised by the legal notice of the meeting, which was published in The Maui News Tuesday.

He says the commission had told the petitioners in January 2007 that the meeting would be held before the end of the year.

Haia says it is "an insult" that the petitioners were not informed by the commission of the public meeting on April 10.

At the commission, a spokeswoman said the public notice would be published in the Honolulu Star-Bulletin today.

Murakami and Haia said that although they consider the meeting unnecessary, they plan to be there to restate their view of the rights of the case "so people understand."

The question goes back earlier than the petition in 2001.

The State Water Code in the 1980s set a goal of establishing permanent instream flow standards throughout the state. Pending that, interim stream flow standards were established by the commission based on whatever was flowing in the streams with withdrawals that were the practice at the time.

In 1990, the Hawaii Stream Assessment was announced to identify the most important streams. It took another seven years before the commission got funding to hire anyone to investigate how to determine and manage permanent flow standards. It was another five years before the commission was able to hire a geologist and a hydrologist to assist in making assessments.

Meanwhile, on Oahu the Waiahole Ditch controversy - which like the East and West Maui controversies involved diversions for plantation agriculture - repeatedly went to the state Supreme Court, which repeatedly instructed the commission to revise its standards for restoring stream flows.

Na Moku 'Aupuni acted in 2001, and Murakami says the commission has delayed ever since. He noted Tuesday that Hui O Na Wai Eha's contested case hearings have been completed (although the case itself is still open), even though it was filed three years after the East Maui petition, while the East Maui contested case has not begun.

Dr. Lawrence Miike, who is the hearings officer for Na Wai Eha, noted at the conclusion of three months of hearings that the East Maui case will be much more complex than the West Maui case, since it involves 27 streams compared to the four West Maui streams - Waihee, Waiehu, Iao and Waikapu.

EAST MAUI STREAM FLOWS

Written or oral testimony will be accepted at a meeting scheduled for April 10 on the petition by Na Moku 'Aupuni o Ko'olau Hui to set instream flow standards for 27 East Maui Streams.

The fact-finding public meeting will be held from 5 to 9 p.m. at the Haiku Community Center.

Written testimony may be sent until June 10 to: Commission on Water Resource Management, P.O. Box 621, Honolulu 96809; facsimile to (808) 587-0219; e-mail dlnr.cwrm@hawaii.gov.

Drafts of Insteam Flow Assessment Reports for each stream will be posted today at www.hawaii.gov/dlnr/cwrm. Paper copies of the drafts will be made available at public libraries in Hana, Kahului and Wailuku and at the Maui Community College Library.