Agribusiness Agency Says It Needs More Time to Repair Waiahole Ditch

“Here it is May 2008 with an order that requires completion in a couple of weeks from now, and this is the first time we’re hearing of this…..All of a sudden, it’s 2008 and it’s, ‘Oh, sorry, we can’t do it.’ If I go before a judge two weeks before something is due and I had a lot of time, the judge would say, ‘You’ve got to be kidding,” Earthjustice attorney Paul Achitoff told the state Commission on Water Resource Management at its May 21 meeting.

At that meeting, the state Agribusiness Development Corporation requested three more years to comply with a 2006 contested case decision by the commission that requires the ADC by June 30 to reduce by nearly 600,000 gallons a day losses from its Waiahole Ditch irrigation system. At the time of the decision, the losses amounted to 2.03 million gallons a day; the commission order requires those losses to be no more than 1.45 mgd as of June 30. To achieve the savings, the ADC is supposed to line two earthen reservoirs – reservoirs 155 and 225 – that deliver millions of gallons of Windward O`ahu stream water to several large agricultural users in the `Ewa plain.

But at the commission’s May 21 meeting, the ADC claimed it did not have the funds to make those improvements and requested an extension of its system loss permit to June 2011. The ADC also asked to modify its permit by reducing its 2.03 mgd allocation to 2 mgd because it had stopped using a 1,000 feet of unlined ditch that was estimated to be losing 30,000 gallons a day.

ADC executive director Alfredo Lee blamed the lack of funds on bad timing. In 2001, the project was estimated to cost between $2 million and $3 million and be completed between December 2007 and June 2008. Although the state had secured some funds for the project, no contract for the work was ever executed, and in the years since the project was first proposed, the cost rose to $6 million. That most recent cost estimate, prepared by the Army Corps of Engineers, wasn’t completed until late last year, too late to request capital improvement project funds from the 2008 Legislature, Lee told the commission. He told the board that the ADC and the state Department of Agriculture were planning to request $1.3-$1.4 million in capital improvement project funds for the project next year.

Concerned about the ADC’s and DOA’s apparent lack of urgency, commission chair Laura Thielen proposed a two-year permit extension, to June 2010, to get the agencies to “take the project more seriously.” Lee dismissed her proposal as unrealistic, stating that the earliest his agency could receive the needed CIP money was July or August 2009.

When Thielen asked him what he would do if the Legislature failed to appropriate funds next year, Lee said he would simply ask again the following year. Saying she was upset that this would mean continued water wastage, Thielen suggested that the ADC consider lining one reservoir using money it already has, and request funds to line the second one while work proceeds on the first.

While she acknowledged that it would be cheaper to do both at once, Thielen asked Lee, “Would it be the right thing to do nothing without [all the] money or do part of the project now?” Although Lee seemed more inclined to wait, a number of water commissioners and Achitoff expressed their wishes to end water waste as soon as possible.

Achitoff, who represents the parties whose litigation led to the 2006 decision, told the commission, “If you do the arithmetic, the amount of water that has already been wasted, it’s enormous.” About .58 mgd (or 206 million gallons a year) is estimated to be lost from the reservoirs through seepage. “That’s a lot of water that has been wasted and they’re asking for three more years of waste…I’m sorry. I don’t agree,” he said.

In addition to the reservoir problem, commissioner James Frazier was not convinced that the ADC should get credit for reducing waste by .03 mgd when it had not actually measured the amount saved by eliminating the use of the unlined ditch.

Lee responded that the savings estimate was based on the area of the ditch and ponding tests, and added that it’s difficult to measure minute changes in flow using existing technologies. With regard to the accusations that the ADC is not taking waste reduction seriously, he handed the commission a long list of improvements that the agency has made over the years to the Waiahole system to reduce losses. The reservoir project “is the only thing we did not do because we don’t have $2 million,” he said.

Even so, commissioner Neal Fujiwara chided Lee for not bringing the extension request to the commission sooner. Instead of granting a two- or three-year extension, the commission voted to extend the ADC’s system loss permit for three months, during which time the ADC must prepare a contingency plan for the reservoir project and a thorough justification for the proposed .03 mgd reduction. The plan and the justification must be submitted to the commission at its August meeting.

After the commission’s vote, Achitoff questioned the legality of the decision. Because the ADCs permit was issued via a contested case decision and order, Achitoff said he wasn’t sure it was appropriate for the permit to be modified at a regular Water Commission meeting. Also, notice of such a modification should have been sent to all of the parties to the case, he said, adding that he only found out about the extension request a day before the meeting.

Thielen said that she would take his comment under advisement and consult with the attorney general’s office on whether the commission needed to amend its decision. Answering the legal issues “would require more discussion than we can do now,” she said.

The Water Commission is edging closer to amending the interim instream flow standards for 27 streams in East Maui. In March, it released to the public five Instream Flow Standard Assessment reports – the first of their kind – on each of the surface water hydrologic units that contain those streams: Honopou, Hanehoi, Waiokamilo, Pi`ina`au, and Wailuanui. The reports, which are each about 100 pages long and cover everything from native rights to wildlife habitat to irrigation and domestic water use, will be the basis for any amendments to the interim instream flow standards for streams in those areas.

The comment period for those reports ended on June 10. Since then, the commission’s Stream Protection and Management Branch has been compiling and weighing those comments and other scientific data. According to branch staff, IIFS recommendations could be brought to the commission either this month or next month.

For the Native Hawaiian Legal Corporation and its clients, the wait has been far too long. In June 2001, the NHLC filed petitions with the commission to amend the interim instream flow standards of the 27 streams on behalf of Na Moku `Aupuni o Ko`olau Hui and East Maui taro farmers Marjorie Wallet, Beatrice Kekahuna, and Elizabeth Lapenia. NHLC attorneys Alan Murakami and Moses Haia have argued that their clients use those streams and have constitutionally protected rights to the stream water, which has been diverted by Alexander & Baldwin, Inc.’s East Maui Irrigation Co. and its predecessors for more than 100 years. (The same parties are involved in an ongoing contested case hearing before the Board of Land and Natural Resources regarding a request by Alexander & Baldwin and the East Maui Irrigation Co. for a long-term lease of East Maui water.)

Since the petitions were filed, both public and private parties with an interest in East Maui streams have funded studies by the U.S. Geological Survey to help gather the scientific information necessary for amending the standards. In addition, the commission has worked to verify all of the stream diversions in the five areas and has helped fund aquatic resource studies by the Department of Land and Natural Resources’ Division of Aquatic Resources there, as well. While some of that work wasn’t completed until May, the Water Commission staff released the five reports for public comment in March.

Despite the abundance of scientific information that has been collected so far, commissioners Meredith Ching and Donna Fay Kiyosaki expressed concerns at the commission’s May meeting that the stream branch was thinking too small.

“It’s kind of hard to look at a part of the whole picture,” Kiyosaki said, referring to the fact that the diverted water serves watersheds outside East Maui. “What happens with the rest [of the island?]” she asked.

Ching, who is also vice president of Alexander & Baldwin, Inc., seemed worried that economic data was not aggressively being sought by commission staff. If the IFSA reports are going to be the basis for new streamflow standards, she asked, “How are we going to get economic information in our reports?…Shouldn’t we be reaching out to people being impacted?”

While one commission staff member noted that some companies aren’t willing to provide economic information, Water Commission deputy director Ken Kawahara responded that the commission has held a public meeting on Maui, issued a press release, and had posted the IFSA reports and comment forms on its website.

— Teresa Dawson

Volume 19, Number 1 July 2008