In the opinion of hearing officer Lawrence Miike, no one got it right.
The Maui Department of Water Supply’s proposal to amend the interim instream flow standards (IIFS) of four West Maui streams – known collectively as Na Wai `Eha – directly conflicted with the state Supreme Court’s Waiahole I decision.
The reasoning behind Wailuku Water Company, LLC’s (WWC) and Hawaiian Commercial & Sugar’s proposed IIFS was flawed.
And the stream flows suggested (but not well explained) by Hui o Na Wai `Eha, Maui Tomorrow Foundation and the Office of Hawaiian Affairs failed to strike a balance between instream and offstream users.
These conclusions, among many others, are included in Miike’s 200-plus-page recommended findings of fact, conclusions of law, and decision and order for the state Commission on Water Resource Management contested case hearing involving `Iao, Waikapu, and Waiehu streams and Waihe`e River. Miike, who also serves on the commission, issued his recommendations on April 9.
The contested case hearing, which began in late 2007, was initiated by Hui o Na Wai `Eha and the Maui Tomorrow Foundation. Prompting them were concerns that Wailuku Ditch owner WWC, which had ceased using the its ditch water for agricultural uses and had instead begun to sell it, was monopolizing a public trust resource for private gain. And so, in 2006, the three groups, represented by Earthjustice, filed a petition to amend the IIFS of Na Wai `Eha.
Predictably, when it came time for the parties to make their recommendations to Miike, the Hui and Maui Tomorrow, joined by OHA, recommended that the commission require the return of most of the diverted water back into the four streams – more than 50 million gallons a day. It was also no surprise that HC&S, the largest single offstream user of Na Wai `Eha water, proposed returning the least amount of water – less than 4 mgd for Waihe`e River and Waiehu Stream only. Wailuku Water Company also recommended returning a very small amount – only a portion of the lowest recorded flows in each stream, or roughly 10 mgd. Maui County did not specify any amount that should be returned, only what it thought should be given to reasonable and beneficial offstream uses.
In the end, while he disagreed with the amount proposed by the Maui groups and OHA, Miike supported their desire to see mauka-makai flows restored and recommended that more than half of the water that has been traditionally diverted be put back. Absent the diversions, the flows of the four streams combined would come to at least 66.9 mgd, about 54 mgd of which comes from groundwater percolating up through the streambed. Instead of allowing WWC to continue to divert its recent historical average of about 50 to 60 mgd, Miike recommended that the Water Commission amend the IIFS below the uppermost diversions to allow 34.5 million gallons of water a day to flow into the streams.
To allow for natural losses through the streambed and to make sure some amount of water is always reaching the ocean, Miike set separate IIFS for various points in the streams, requiring a minimum flow of 10 mgd at the mouth of Waihe`e River, 1.6 mgd at the mouth of Waiehu, and 6.7 mgd at the mouth of `Iao stream.
For Waikapu Stream, Miike recommended a temporary release of 4 mgd to test whether or not water would reach Kealia Pond. If it does not, or if the additional flow has no effect on recruitment of amphidromous organisms (stream species that spend part of their life cycle in the ocean) in the stream, Miike recommended that there be no IIFS at or below the main diversion.
“[E]stablishing continuous stream flow from mauka to makai provides the best conditions for re-establishing the ecological and biological health of the waters of Na Wai `Eha,” he wrote, adding that while restoration can’t fix all of the degradation to stream ecosystems, “flow restoration is the instrument available to the Commission.”
The decision, if adopted by the Water Commisison, would be a boon to the streams’ ecosystems, Native Hawaiian cultural practitioners, and kuleana landowners. Miike admits that his recommended IIFS will result in days when no water is available for offstream uses, even if they are reasonable ones. He adds that had he accepted the Hui and Maui Tomorrow’s prospoals, no water would be available for offstream use – which includes kuleana and domestic water use – between 15 and 35 percent of the time.
Water Use Permits
In addition to dealing with the IIFS of Na Wai `Eha, the contested case hearing also addressed water use permit applications filed by the county, HC&S and WWC for diked, high-level well and tunnel sources within the `Iao watershed. For these, Miike recommended that the Water Commission grant a permit to the Maui DWS for 1.042 mgd from a well at Kepaniwai and 1.359 mgd from the `Iao tunnel.
Miike recommended that H&CS receive a one-year permit for 0.1 mgd from `Iao tunnel, during which time the company must provide proof of the actual amount of water used. If HC&S needs longer than one year, Miike recommended that the commission could continue issuing one-year permits for up to five years, at which time the commission would have to make a final determination on the permit.
Miike recommended denial of Wailuku Water Company’s permit applications for three tunnels that discharge into `Iao stream. (Miike added that WWC’s permit application for .227 mgd from the portion of `Iao tunnel that it shares with the MDWS was incomplete and not part of the contested case hearing.)
‘Reasonable’ Uses
As a result of the Hawai`i Supreme Court’s decision regarding O`ahu’s Waiahole irrigation ditch system, all offstream users in designated water management areas must prove that their uses are reasonable and beneficial by providing details on “acres to be used, the crops to be planted, and the water needed as to each group,” Miike wrote in his decision, adding that absent such basic information, an offstream user cannot meet its legal burden.
In their opening briefs, the Hui and Maui Tomorrow had argued that Na Wai `Eha’s stream diversions leave large sections of the streams dry, and that this, in turn, affects aquifer recharge, stream organisms that need continuous flow to the sea, as well as Native Hawaii traditional and customary rights, riparian and appurtenant rights, and the rights of kuleana landowners. What’s more, they and OHA claimed that HC&S and WWC were wasting a significant amount of water without any justification.
To determine how much water should be allocated for the various uses, Miike first had to determine which ones were reasonable. The following is a summary of his findings for some of the major uses:
HC&S: Regarding claims by the Hui, Maui Tomorrow, and OHA that HC&S was wasting water or overwatering their fields, Miike found that, based on models and expert testimony on the water requirements of sugarcane, HC&S’s water use has not been particularly wasteful. Although he did find that HC&S was over-watering some fields, he also found that for others, based on various estimates of sugarcane requirements, HC&S did not water them enough. He did find, however, that the sugar company has access to alternate sources of water and could also significantly reduce its system losses by lining its reservoirs.
WWC: With regard to the water delivered by WWC under its various Water Delivery Agreements, Miike did not seem satisfied with the evidence the company provided on the end use of the water. Miike stated that the company’s table of 34 customers provided no information on acres cultivated or on the nature of use, “except to label them generally as either ‘agriculture’ or ‘irrigation’.” For WWC users, not including MDWS and HC&S, total use was 2.37 mgd in 2006, out of a total of maximum amount allowed by its contracts of 8.288 mgd.
Kuleana uses: With regard to taro cultivation, Waiahole taro farmer Paul Reppun, a witness for Hui o Na Wai `Eha, testified that 300,000 gallons a day of water must be consistently available to grow healthy taro. On average, Miike calculated that the kuleana users who are using or seek to use Na Wai `Eha water receive on average about half that, between 130,000 and 150,000 gallons per acre per day (gad) for their lo`i, which translates to about 260,000 to 300,000 gad, considering that for the 50 percent of time, no water is needed to flow into a lo`i. These amounts, Miike wrote, would be sufficient for proper kalo cultivation, but added that much of the water reported by WWC as being delivered to kuleana lands is being lost in the system between the lands and WWC’s ditches and reservoirs.
Stream organisms: With regard to instream uses, Miike noted that Hui O Na Wai `Eha’s and Maui Tomorrow’s expert witness argued that contiguous mauka-makai flow is necessary for amphidromous organisms – native fish (o`opu), shrimp (`opae), and limpets (hihiwai) – to thrive, while HC&S’s expert stated that such flow is not needed to have “ecological connectivity,’ because even intermittent streams in known dry areas maintain populations of amphidromous species. Miike concluded, “Ultimately, the precise volume and duration of stream flow needed to sustain the life cycle of amphidromous organisms is not known.”
Wetland restoration: Miike seemed to side with HC&S with regard to the Maui Coastal Land Trust’s request for increased flow into Waihe`e River. MCLT, which owns three kuleana parcels bordering the Kapoho Wetlands, had requested releases into Waihe`e River to bring the water table up 18 inches, which its expert said would provide for better habitat and improved conditions in the refuge’s fishpond. HC&S’ groundwater expert, however, said the same result could be achieved by drilling a well.
Domestic use: Miike found that Maui County’s municipal water supply could not be significantly augmented by groundwater from Central Maui’s Waihe`e and Waikapu aquifers and that a December 2003 consent decree in the case of Coalition to Protect East Maui Water Resources v. Board of Water Supply, County of Maui, requires the county to look to the hydrologic units in Na Wai `Eha before developing ground water in East Maui.
Considering all of the research and expert testimony submitted during the hearing, Miike concluded that “total reasonable current and future uses for all diverted stream waters are 37.19 mgd to 39.52 mgd; 1) 0.68 mgd to 1.71 mgd for consumptive use by kalo [taro] lo`i; 2) 12.2 mgd for MDWS; 3) 2.02 mgd for WWC’s Water Delivery agreements; 4) 2 mgd for WWC’s system losses; and 5) 20.29 mgd to 21.59 mgd for HC&S.” He added that if the total flow-through requirements and not just the consumptive use of taro is included, total “reasonable” use would increase to between 43.35 and 44.65 mgd.
“Most of these additional amounts, however, would have to be returned into streams downstream of the diversions to the lo`i,” he wrote.
What’s next?
It will probably be months before the Water Commission decides how the water is eventually allocated, since parties to the contested case submitted their exceptions to Miike’s findings, decision, and order just last month. But it’s clear from filings by the parties to the case that some aren’t very happy with Miike’s decisions. HC&S, for example, wrote in its exceptions, “Had the proposed IIFS for Waihe`e Stream been in place in 008, for more than 4 out of every 5 days, there would have been no Waihe`e Stream water available for use by HC&S at all and insufficient water for MDWS’ proposed Waialae Water Treatment Plant to operate at its 9 mgd capacity.”
After the Water Commission rules on the case and sets new IIFS for Na Wai `Eha, it will then have to deal with the surface water use permit applications for what’s left. According to Water Commission staff, more than 100 applications were submitted earlier this year by kuleana users, various private companies, the Maui DWS, WWC, HC&S, and others for permits for existing uses.
— Teresa Dawson
Volume 19, Number 12 June 2009
Leave a Reply