State to control Maui streams

Diversions from four waterways have been a source of contention

The Honolulu Star-Bulletin
Sunday, March 16, 2008
By Gary T. Kubota

WAILUKU » A state commission has decided to take over management of four major streams in central Maui. The decision Thursday marks the first time that the Commission on Water Resource Management has voted to designate a surface water management area.

Earthjustice attorney Isaac Moriwake, representing Maui Tomorrow and Hui o Na Wai Eha, which sought the designation, said the decision will affect dozens of stream users in central Maui and has statewide implications.

Moriwake said the decision might also be applied to streams in west Hawaii and east Maui, where there have been disputes over water diversions. Those diverting water or planning to divert water from Waihee, Iao, Waiehu and Waikapu streams will be required to apply to the commission for permits within a year from the publication of a notice.

Commission Chairwoman Laura H. Thielen said she voted for designation in light of continuing water disputes among users of these Maui streams.

"This is a pretty historic vote," Thielen said.

Maui County and Sierra Club Hawaii also supported the designation. Wailuku Water Co. President Avery Chumbley, whose business is a major diverter and distributor of stream water, declined comment.

Wailuku Water's predecessor Wailuku Agribusiness stopped growing sugar cane in 1988 and macadamia nuts in the 1990s. The company has been allowed to take water from its existing diversion, under interim stream flow standards established by the commission in 1988.

Small farmers have charged that Wailuku Water's stream diversions have continued despite decreasing demand. Hawaiians said the lack of stream flow also threatens native wildlife, including hihiwai, o'opu, and opai.

Ed Sakoda, the chief of the state stream protection and management branch, said the lack of scientific information has made it difficult to show the effect of stream diversions.

Moriwake said the surface water management designation will help to provide more information about water diversions.

"It's one more step in better public management and oversight in stream resources," Moriwake said.

Moriwake said many of the people who are seeking more stream water own kuleana lands or lands that grant them rights to stream water. Some residents said gaining access to stream water has been difficult if you're a downstream user and there is insufficient water.

Victor Pellegrino, a retired college professor whose wife inherited some Hawaiian ancestral land in central Maui, said there were some 2,000 taro patches in Waikapu in 1850 and now there are only three.

"We have them. We want to open nine more on our historic farm acreage, but we do not have enough water to open more than these three," Pellegrino said.

Teruo Kamasaki, a farmer, said he plans to apply for a permit.

Kamasaki said he used an irrigation pipe to divert water from a stream for 25 years but the pipe was broken three years ago by a bulldozer.

One Step Closer to a Decision in Na Wai 'Eha Contested Case

Final testimony delivered in contested case hearing over Na Wai 'Eha streams, but some say the battle is far from over.

The Maui Weekly
3/13/2008
by Sarah Ruppenthal

After months of impassioned debate, the day had finally arrived. On the morning of Monday, March 3, dozens arrived at the Harry & Jeannette Weinberg Family Center in Wailuku to hear the final round of testimony in the contested case over Na Wai 'Eha.

Na Wai 'Eha, also known as the "The Four Great Waters," is the quartet of waterways that extends to the shoreline from the West Maui Mountains, and is comprised of the 'Iao, Waikapu, Waihe'e and Waiehu Streams.

At the heart of the Na Wai 'Eha case are the state Constitution, state law and a number of Hawai'i Supreme Court decisions, all of which define water as a public resource. But the opposing parties in the case have varying interpretations of the law. On one side, principal off-stream users, such as Hawaiian Commercial & Sugar Company (HC&S), Wailuku Water Delivery Co. and the Maui County Department of Water Supply, argued for a balancing of interests, while the petitioners-Hui o Na Wai 'Eha and Maui Tomorrow Foundation-maintained a position of accountability, requiring users to show "beneficial in-stream uses? in light of existing and potential water developments including the economic impact of restriction of such use."

Throughout the hearings, petitioners argued that sections of Na Wai 'Eha had grown increasingly parched after so many years of commercial use. Without a steady flow of replenishing, or "recharging" water, areas downstream from diversions are left with only a minimal amount of water, while others are completely dry. But the users responded with the claim that their use of Na Wai 'Eha water for commercial agriculture is a reasonable and beneficial use.

A decision is not expected until September, and although he admitted it was "complicated," state Commission on Water Resource Management Hearings Officer Dr. Lawrence Miike said, "I think overall this was a very good contested case."

But the case may have grown even more complicated. In his final testimony last week, Wailuku Water Co. President Avery Chumbley announced he had a prospective buyer for one-third of the watershed that outsources to all four streams. The buyer, Mike Atherton, has an established business relationship with Wailuku Water Co., after purchasing thousands of acres from the company.

The announcement startled some members of Maui Tomorrow Foundation and Hui o Na Wai 'Eha, and many expressed disappointment at the news of negotiations between Atherton and Wailuku Water Co. "It was disheartening, to say the least," said John Duey, president of Hui O Na Wai 'Eha, who did not miss a single hearing.

"We do appreciate that it [the contested case] got to this point," he said. "But some of the things I heard were upsetting; especially what some of the users said they are doing with the water."

With so many hands in the Na Wai 'Eha water supply, it has become increasingly difficult to sort out how much is being used. And for thousands of island residents-especially those who depend on rainfall for water supply-the thought of water vanishing from the streambeds is a frightening prospect. The tenuous nature of Maui's water supply has generated a series of proposed solutions, including water storage systems and desalinization treatment plants. But according to Duey, the best and most logical solution is one that has worked for thousands of cities across the United States-a reservoir. He said that a one-billion-gallon-capacity reservoir would accommodate water demands, relieve water shortages and eliminate the need to pump water from the ground. "It's not impossible," he said. "It will just take some time and money? everything takes time and money." As for the price tag, Duey said he recently received a bid for $108 million to build a fully-lined, one-billion-gallon reservoir on the parcel of land in adjacent to the Maui Correctional Facility in Waiale.

So what happens next? Pending the results of a hearing on Thursday, March 13, Na Wai 'Eha Streams may be granted a surface water designation, which would require all users to apply for a usage permit. But the final decision of the contested case hearing could take some time. It is expected that the commission's initial findings in September will prompt a series of appeals, and may ultimately wind up in the hands of state Supreme Court justices.

But for now, the members of Hui O Na Wai 'Eha and Maui Tomorrow Foundation are looking forward to the day the water is returned to the streams of Na Wai 'Eha. "We don't know when or how much, but we hope to get some water in the streams by the end of the year," said Duey.

The process may have been long and exhausting, he said, "But it was a fight worth fighting."

Na Wai Eha designated

State commission to require permits for the water's users

The Maui News
March 15, 2008
By HARRY EAGAR, Staff Writer

WAILUKU - For the first time ever, the state Commission on Water Resource Management has designated a surface water system - the four West Maui streams called Na Wai Eha. The action, by unanimous vote Thursday, was strongly supported by the county government and by a variety of local groups. No one spoke against it.

As soon as the action is officially published, users of Na Wai Eha water will have one year to apply to the commission for a permit to use the water. Persons not now using the water but who want to will also have one year to make an application. Many in the audience of about 30 people at the Cameron Center clapped when the vote was completed.

"This seemed kind of mundane until you guys broke into applause," Commission Chairwoman Laura Thielen said. "It is historic."

Groundwater systems have been designated on three islands, including the Iao aquifer that underlies part of Na Wai Eha, but never before has the state taken direct control of a surface system - what the commission calls a "surface water hydrologic unit." The commission has been petitioned to set instream flow standards for a number of hydrologic units, including Na Wai Eha and 27 stream systems in East Maui.

The State Water Code lays out the steps to be taken to justify a designation and then of permits, but the administrative details on a surface water system are indistinct, since it has never happened before.

Thielen promised an "inclusive, open, transparent" process but asked for give-and-take in making it work.

The commission is mandated to designate a water management area "when it can be reasonably determined, after conducting scientific investigations and research, that the water resources in an area may be threatened by existing or proposed withdrawals or diversions of water."

Generally, a water system is considered threatened when withdrawals and diversions are causing damage to the quality of the water - as when excessive withdrawals of groundwater increase salinity.

With the Na Wai Eha streams, the designation is particularly problematic because Na Wai Eha is also in the midst of a contested case that will, at some point, reduce the amount of water available for off-stream users. How much must go back into the streambeds is to be determined.

Ed Sakoda, head of the Stream Protection and Management Branch, explained that the commission will issue permits for surface water use based on the existing interim instream flow standards for Na Wai Eha - the Iao, Waikapu, Waihee and Waiehu streams. Interim standards are whatever the current users can show they have been taking.

Once the commission sets permanent standards for the amount of water that must be restored to each stream, the commission will have five years to revise the permits.

According to John Duey, president of Hui O Na Wai Eha, some people with kuleana water rights do not now have access to water. Sakoda and Thielen said those people should submit applications.

Kuleana users have superior rights to most other applicants, so presumably these people would go near the head of the line, even though most other "new" users would compete for water at a disadvantage with existing users. In any case, the commission can only allow permits for classes with constitutional or legal privileges (such as Native Hawaiian traditional and customary uses) or if they meet a reasonable and beneficial use test.

In 1989, the commission registered a list of existing kuleana users. This was, said Sakoda, a "snapshot" to give the staff an idea of what was going on.

Being registered is not the same as having a permit, and Thielen and Sakoda urged anyone on the register (or their heirs and assigns) to apply for a permit and to do so within the year time limit. Existing users who don't apply in time will be treated as "new" users.

Thielen urged the activists in the room to go into the community and make sure everyone understands the importance of the designation. Although the commission is supposed to act shortly after the one-year application period closes, Thielen said, "Being the state, you can be assured it's not going to be quick."

It took well over a year to determine permits when the Iao groundwater was designated, and the permits for upper-level (dike) water in Iao still have not been issued.

"We need to work through a fair process," said Thielen.

Commissioner Dr. Lawrence Miike noted that the Hawaii Supreme Court, in one of its many decisions in the Waiahole case on Oahu, had told the commission to designate surface waters there. That was 10 years ago, but it hasn't happened yet. In part, that is because the commission can designate without much - or, indeed, any - scientific data on the streams, but it needs more information to issue permits.

Before the vote, Sakoda explained that there are three reasons the commission can designate a surface water area. One is evidence that the amount of water being generated by the system is declining, without respect to droughts or diversions. Another is that diversions are reducing the ability of streams to assimilate pollution.

"No evidence was presented" for either position, he said.

Ironically, in the contested case over Na Wai Eha stream flows, the party with most to lose - Wailuku Water Delivery Co. - did argue that the flows are declining.

However, a third, nonscientific reason also was available to the commission - that a clear public dispute over the water exists. The Sierra Club, Hui O Na Wai Eha and Maui Tomorrow Foundation all testified that the contested case proves that a dispute is active.

There was also another trigger for designation, based on a Supreme Court decision: The commission can take control when there is a demonstrated interconnection between surface waters and high-level impounded groundwater - water trapped when lava dikes form natural reservoirs in the slopes of the mountains.

That case exists at least for streams flowing out of Iao Valley, Miike said.

The amount of water flowing in the streams of Na Wai Eha is at least 50 million gallons a day. Designation gives the commission the power to order the operators diverting water - Wailuku Water and Hawaiian Commercial & Sugar Co.- to install flow meters or other devices for data about the surface system.

Testimony taken during the contested case over instream flow standards, which concluded earlier this month, revealed that many fundamental questions remain about how much water flows in the four streams draining the West Maui slopes, and how the different streams work.

The petition to designate the surface waters of Na Wai Eha was brought by Hui O Na Wai Eha and Maui Tomorrow Foundation, which also petitioned for the commission to determine instream flows. Both petitions are supported by Maui County and the Office of Hawaiian Affairs.

The commission has several dockets open on the ground and surface waters of West Maui. Although administratively separate, Thielen said the commission will consider them as a package, because physically the water sources interact.

WATER USE ISSUES

Five petitions were before the state Commission on Water Resource Management concerning fresh water on Maui:

To set permanent instream flow standards for 27 East Maui Streams; brought by Na Moku Aupuni O Koolau Hui, Beatrice Kekahuna and Marjorie Wallet.
Status: Information packets being distributed to interested parties this month. Public fact-gathering meeting, 5-9 p.m. April 10 at Haiku Community Center.



To designate Iao and Waihee aquifers as groundwater management areas; brought by Maui Meadows Homeowners Association.
Status: Iao aquifer was designated in 2003; designation of Waihee aquifer deferred in 2004.



To set permanent instream flow standards in Na Wai Eha; brought by Hui O Na Wai Eha, Maui Tomorrow Foundation.
Status: Contested case hearings completed; pending hearing officer's decision.



To set permanent instream flow standards for Honokohau, Honolua streams; brought by Maui Land & Pineapple Co.
Status: Under way.



To designate Na Wai Eha a surface water management area; brought by Hui O Na Wai Eha, Maui Tomorrow Foundation.
Status: Designated by commission on Thursday; permit application window to open as soon as action is officially published.

Designation another step

The Maui News
March 15, 2008
Editorial

The decision by the Commission on Water Resource Management to designate the surface system of Na Wai Eha was inevitable, but it is no less significant for that.

No surface system has been designated before, not even the Waiahole-Waikane streams that have twice gone to the Hawaii Supreme Court, which twice told the commission to do a better job of determining instream flows.

Immediately, nothing happens with the designation of the West Maui streams. Existing and would-be users of the water have one year to apply for permits to justify their uses or proposed use of water from the streams.

Then, if there are objections - almost a certainty - there will be public hearings. It could take a while for anyone to get a withdrawal permit under the new regime.

At the same time, the commission will be deciding how much water now being diverted by the old Wailuku Sugar irrigation system must be restored to the streams - for stream critters and for riparian rights of downstream landowners.

The commission must consider existing uses, which include the historic claims of Hawaiian Commercial & Sugar Co., in setting permanent instream flow standards. In three tries since 1997, it has not yet established a fully accepted balance in the Waiahole Ditch case; a third commission decision rendered in 2006 restored 12 million gallons of water a day to four Waiahole-Waikane streams from a plantation system that withdrew an average of 27 mgd. It's pending appeals.

For Na Wai Eha, both designation and determination of stream flow will mean less water for off-stream users. Kuleana users will get water. Native Hawaiians will get water. The Department of Water Supply will get water, although conceivably not as much as it would like.

Farms, golf courses, developers may get less or even nothing. It will take years to settle out.

After two decades of saying that the citizens of this state are going to treat water in a new way, as a public trust, the commission is getting a focus on its authority and responsibility.

In its Waiahole II decision, the Hawaii Supreme Court chastised the commission for not setting priorities on use of public trust resources, saying "by failing to prioritize among public trust resources, the water commission failed to fulfill its duty, under the Water Code and under the public trust doctrine."

The commission is trying harder.