Parties Offer Final Arguments In Na Wai Eha Contested Case

“No pressure, but history is in your hands,” attorney Pamela Bunn told the Commission on Water Resource Management during oral arguments in the Na Wai Eha contested case hearing, held November 19 in Wailuku.

Fifteen years after Earthjustice, on behalf of the community group Hui o Na Wai Eha, filed petitions to amend the interim instream flow standards for Wailuku, Waiehu, and Waihe‘e rivers and Waikapu Stream, all in Central Maui, and 13 years after the commission designated the watersheds feeding those streams as a surface water management area, a decision on who gets what and how much water will remain in the streams is near.

But at the November hearing, it became clear that the commission’s task won’t be as simple as approving the 500-plus-page proposed findings of fact, conclusions of law, and decision and order (D&O) issued two years ago by hearing officer and former Water Commissioner Lawrence Miike.

Hawaiian Commercial & Sugar (HC&S), to which Miike proposed allocating 15.65 million gallons of water a day (mgd), received commission approval in September to transfer control over its water use permit application to Mahi Pono, LLC. Mahi Pono, which also receives diverted stream water from East Maui, is still in the nascent stages of growing diversified food crops on a portion of HC&S’s former sugarcane lands.

At the start of oral arguments, commission chair Suzanne Case noted that Mahi Pono, the Office of Hawaiian Affairs (which Bunn represents), and Earthjustice’s clients (the Hui and Maui Tomorrow Foundation) had agreed to a stipulation and order under which Mahi Pono would receive an existing-use water permit for just 11.22 mgd. The company would be given an initial allocation of 9.35 mgd, and would receive an additional 1.87 mgd if and when it met the following conditions:

1) a licensed surveyor confirms that Mahi Pono has planted 1,850 acres of food crops in the Waihe‘e-Hopoi fields before December 31, 2021;

2) the company consistently uses 4.5 mgd from its Well 7 for reasonable-beneficial agricultural use;

3) the company has an actual need for the additional water;

4) the company develops and implements a plan to minimize system losses; and

5) the company provides the community groups, OHA, and the commission with the information necessary to verify that the conditions have been met.

Among other things, the company also agreed to invest $250,000 in the plan to address system losses, to fully close a low-flow intake on Spreckels Ditch on Wailuku River that had been partially sealed by HC&S, and to not transfer the permit or use its water allocation for anything other than agricultural use.

“Mahi Pono raises the standard for a new chapter in the history of agriculture for this region,” Earthjustice attorney Isaac Moriwake told the commission.

“Through this long process, there have been community members that have actually passed on. This has been a long process and people have been very patient. … They will finally have an adjudication of their water rights,” he said.

The commission is expected to issue a decision some time next year.

More Water

While the stipulation provided some respite to what could have been a contentious debate over Mahi Pono’s water needs, OHA and the community groups were far from satisfied with the rest of Miike’s proposed D&O.

In particular, they argued that water should be allocated to the dozens of taro farmers who applied for a traditional and customary (T&C) rights use permit, but were not recognized by Miike because they failed to show they were lineal descendants of people who used the properties in the same way they proposed to more than a century ago.

The stipulation with Mahi Pono frees up 4.43 mgd that Miike had slated for HC&S. Bunn suggested that some of the other allocations Miike proposed could also be reduced. For example, she mentioned that Makani Olu Partners, LLC, which mainly raises cattle, would be awarded 138,200 gallons per day, or 2,090 gallons per acre per day under Miike’s proposal. She pointed out that other similar operations in the area used far less or none at all for irrigation.

“The question is whether that is reasonable-beneficial if nobody else needs it,” she said.

Avery Chumbley, representing the company, thought it odd that OHA, Hui o Na Wai Eha and Maui Tomorrow would oppose such a small allocation.

“They propose a 90 percent reduction. … It seems like a lash-out against me personally as operator of Wailuku Water Company,” he said.

Bunn and Earthjustice’s Isaac Moriwake argued that the proposed allocation to Wailuku Country Estates was also too high. “The water [the D&O] does award is phenomenal, close to 4,000 per day per lot,” Bunn said, adding that was more per-acre than what Mahi Pono plans to use. Moriwake added that Wailuku Country Estates itself has stated that it limits users to 2,666 gallons per day. “There should be no basis for allocating any more than that for sure,” he said.

Wherever the water for T&C permit applicants comes from, OHA and the community groups argued that denying them permits would be unjustified.

“Nothing in Hawai’i’s constitution, statutes, or legal precedents requires an ahupua’a tenant seeking to exercise his or her T&C right to cultivate kalo to show that his or her direct ancestors cultivated kalo in the same location prior to November 1892. All that must be shown is that the traditional and customary practice of kalo cultivation was established in the ahupua’a comprising Na Wai Eha prior to November 1892, which is both undisputed and undisputable,” OHA stated in its exceptions to the proposed order.

Miike had recognized only 13 of the 40 T&C permit applications submitted by native Hawaiian applicants who established their right to cultivate kalo, OHA continued. “Imposing the restriction would thus plainly violate the Commission’s ‘affirmative duty to . . . preserve and protect traditional and customary native Hawaiian rights,’” OHA stated.

Hui president Hokuao Pellegrino contested Miike’s decision not to grant him and his wife Alana a T&C permit. “Both my wife and I are kanaka maoli. … There was no process for me to prove I am genealogically connected to this parcel, even though I am,” he told the commission. Even though he can prove a connection, he continued, “it is irrelevant because I am kanaka.”

He asked that his water use permit for his kuleana taro patches be categorized as a Category 1 T&C permit. Miike had proposed granting the Pellegrinos water under Category 2 permits for appurtenant rights holders, as well as a Category 3 permit for new uses. Category 3 permits, however, would only be honored if there was enough water, Miike proposed.

Bunn said it was wrong for Miike to have imposed the lineal descendent requirement. “I don’t think there is any precedent. That is an issue that would force OHA to appeal [the commission’s decision]. It has a very concrete impact,” she said.

She also asked the commission to eliminate Miike’s recommendations capping water for T&C uses to one acre. “Again, there is simply no precedent for that. That is something Mike apparently thought would be a good idea without really saying why. Again, it has practical consequences,” she said.

Implementation

In describing how the proposed D&O vastly underestimated the water needs of the kuleana parcel where he and his father operate a catfish farm, Bryan Sarasin, Jr., also shed light on how it’s nearly impossible to ensure consistent water flow from the ditches operated by Wailuku Water Company (WWC), which he and many other kuleana landowners rely on.

He said he’s spent countless weekends cleaning the auwai by hand trying to increase flow for kuleana users, “to get every drop flowing to the farmers on the auwai.”

“It is in your hands to allow me to do this [raise fish] for the rest of my life … or leave big holes in the ground,” he told the commission.

Commissioner Neil Hannahs asked Sarasin whether his issue was with the amount allocated in the proposed D&O or the amount of water that actually gets to his property.

He said it’s both. The proposed D&O allocated one sixth or one seventh of what his farm needs, he said, adding that he has provided information to the Water Commission clarifying how the farm’s water needs were calculated in his father’s water use application. “I was able to show beyond a shadow of a doubt this is the amount of water we use … to have fish grow quickly, stay disease free, stock ponds…,” he said.

In addition to the need for a larger allocation, he said there is an ongoing issue about water flow through the ditch system. He said he has to do a lot of the clearing himself. “It’s a lot of work. … Sometimes you gotta drop in by ropes just because of the terrain.”

Commissioner Kamana Beamer asked if the community could collectively manage the system if the commission established a process to allow for that.

“Being brutally honest, we’ve got a number of people on the system willing to cooperate. Some, not so cooperative for whatever reason or reasons,” he said. He added that there are big swaths of land between some of the intakes that go untended. “Who’s going to take care of this? Some people put in a lot of work, a lot more than what they should be, while others don’t do their share and enjoy the water,” he said.

Sarasin’s plight exemplified the difficulties surrounding the implementation and enforcement of interim instream flow standards, as well as any water use permits that the commission grants.

Paul Mancini, attorney for WWC, complained that the company will be tasked with distributing water to permittees in an equitable fashion, but with no standards to guide how that should be done.

“There are very few users that are metered,” he said. Even so, Miike’s D&O tasks WWC with developing an implementation plan to allocate water, after first conferring with the Water Commission. “It’s an improper delegation. These are obligations on the commission,” he said, adding that the commission needed to develop rules to regulate the allocation of water to permittees taking water from the four streams.

It could take a year to pass such rules, he continued, expressing his hope that an implementation plan is in place before low stream flows require WWC to restrict allocations to permittees.

For one thing, “we have no way to accurately measure what is getting down and how it’s used,” Mancini said, adding that WWC also doesn’t have a control mechanism to reduce the permittees’ use.

“They [WWC] need help. … I think that’s what the commission is for, is granting help,” he said.

Commissioner Mike Buck asked what WWC’s obligations were as the diverter of the water.

WWC’s Chumbley said he thought that would depend on what the commission decides. “Should we have gages? Yes. Maintain the system to an operational standard? Yes. Beyond that, we’re just diverting to someone else,” he said.

Commissioner Beamer asked whether WWC is required to deliver water to people with appurtenant rights vs. people who pay the company.

“An excellent question,” Mancini replied. He explained that the state Public Utilities Commission, which regulates utilities such as WWC, has not allowed the company to take on any new customers in the past decade. Providing water to a user with appurtenant rights who is not a current customer may require the PUC to make an exception.

“In any case, some tariff would be established by the PUC,” Chumbley added. Users with appurtenant rights would be subject to a tariff that they have not had to pay in the past, he argued. “Now that we’re a quasi-public utility, there will be a public hearing process…. The PUC will determine if there is a tariff or rate to participate in that system,” he said.

Mancini said that WWC obviously wants more water users, but there is a problem with access to the ditches that’s not dealt with in the proposed implementation program.

Commissioner Hannahs asked WWC what it has invested in infrastructure improvements to avoid system losses.

Chumbley said he didn’t bring that information with him and the last real study done to determine losses and improvements to be made was in 1984. He said that the company has downsized from 15 reservoirs to eight, and has repaired diversion weirs, earthen banks and other places where there may have been leaks.

He said the company lost $2.5 million between 2007 and 2018. “We’re not making money. We’ve burned through any cash reserves we had. … We’re at a financial point I’m not sure how much longer I can continue to be able to do this. Had I had more cash reserves, maybe I would have done more system losses work,” he said.

Given that, Hannahs said it was “hard to hold out a lot of hope there will be improvements in system losses.”

“You’re talking about millions of dollars to line ditches. … It’s an open system that only functions with a certain amount of water going through it,” Chumbley explained.

Even so, Hannahs said an investment in stemming system losses has to be made at some point. He raised the allegation — backed up by video — made by Hui president Pellegrino that WWC was dumping unused, diverted water from its system into Kealia Pond.

Chumbley explained that the irrigation system was built to take all of the water from the streams and use it all on a daily basis. Today, it doesn’t always happen that the amount diverted matches up exactly with what’s used, he said. “It’s not dumping water, it’s releasing water. … If you have an open system … you don’t have a valve to turn on and off,” he said.

To Hannahs, it sounded like more communication with the ditch users on their water needs would help. While Mancini had argued that the commission should not delegate its authority to implement the permit allocations to WWC, Hannahs asked, “Why not have an expectation you all would work together and reach an agreement like Mahi Pono [that] leads to better management and better resource use?”

Mancini replied that his concern was with the lack of standards for decisions on prorating of water. “It creates a serious problem because everybody is going to be pointing fingers on it,” he said.

Already, Chumbley said he didn’t think there was enough water in the ditch system to meet the 39 mgd in permitted allocations proposed in the D&O. At best, between 17 mgd and 24 mgd flows in the system these days, he said.

What if WWC is not viable going forward, and if so, how will that affect the kuleana owners who depend on the ditch system? Moriwake said he thought there is an opportunity to reconnect those kuleanas to the stream to make sure there’s more consistent water delivery.

Historically, it was recognized that kuleana owners had priority use of the ditch water, he said.

Given Chumbley’s claims about the impending PUC tariffs, Commissioner Buck asked Moriwake who should pay for the diverted water and who should not.

“I can start with who should not pay. The kuleana users who have been made to rely exclusively on the ditch system. There’s an obligation [by the diverter], having cut them off [from the streams],” Moriwake replied.

With so many non-paying users, Moriwake conceded that it may not be viable for a private company to run the ditch system. “Talks are ongoing or are already done for this system to be transferred to a government entity,” he said.

Commissioner Beamer asked whether it could require a diverter to ensure that appurtenant rights are guaranteed.

Moriwake said it could, because in all of Hawai‘i case law on original water commissioners, going back to the 1800s, water rights included not only the quantity, but the ability to access it. “I realize this is a new issue for the Water Commission, but the legal authority is there,” he said.

Beamer returned to his idea of collective management, especially since the commission’s limited staff would not be able to be “on the ground every day” to enforce the commission’s decision.

Moriwake agreed that the situation in Na Wai Eha was a “tremendous opportunity for that type of collaboration. It starts with Hui o Na Wai Eha. … The board is unbelievably stocked with really capable, insightful leaders,” he said.

Earlier in the meeting, Moriwake suggested that it may not be necessary to maintain the system as it is today. “I would venture that the system of the future is going to be a much smaller system. There may be segments you may have to spin off to the community,” he said. — Teresa Dawson