Judging by arguments made in the contested case hearing over stream-related water sources in West Maui, the fate of the entire island is at stake. Oral arguments in the case begin this month on Maui, and environmental and Hawaiian groups, and even the county of Maui, are expected to argue against what they see as the monopolization of public water for private profit, while companies supported by that water fight to hold onto every drop they can.
The case, to be overseen by Commission on Water Resource Management member and hearing officer Lawrence Miike, has been called “Waiahole on steroids” in reference to the 1995 contested case over windward O`ahu stream water diverted by the Waiahole irrigation system. Although that case bounced between the Water Commission and the Hawai`i Supreme Court for more than a decade, it resulted in the Hawai`i Supreme Court establishing a new framework against which all future water cases would be decided, elaborating on the role of the public trust doctrine and the precautionary principle in water management, and clarifying “reasonable-beneficial uses” and burdens of proof. (Final adjudication of the Waiahole case is still pending.)
As in the Waiahole case, taro farmers and environmentalists on Maui are calling for the restoration of stream flows that have long been diverted by a ditch system that was built to irrigate sugarcane fields and now is increasingly used for non-agricultural purposes. But the West Maui case involves much more water, an average of about 67 million gallons a day, compared to about 25 mgd in the Waiahole case.
While oral arguments are scheduled for December 3-14, all five parties involved have already laid out their arguments in opening and responsive statements filed September and October. The following provides some background and a summary of the main areas of dispute.
Background
If you think of Maui as consisting of a head, neck and body, the Waihe`e, `Iao, Waikapu, and Waiehu streams and their tributaries, collectively known as Na Wai `Eha (the four waters), is located on the back of the head, near the base of the neck. Rains from west Maui’s Mauna Kahalawai feed the streams, which, in their upper reaches also receive water from underground dikes within the `Iao aquifer.
Before sugarcane plantations overtook the Hawaiian islands, Na Wai `Eha fed the largest continuous area of wetland taro cultivation in all of Hawai`i, according to Native Planters by Elizabeth and E.S. Craighill Handy and Mary Pukui. Since the mid-1800s, however, much of the water flowing in those streams has been removed by intakes, chutes, tunnels, ditches, and reservoirs that make up the Wailuku Ditch System. The system includes more than 20 miles of open ditches and tunnels, and according to a U.S. Geological Survey report, “the ditches usually take all available streamflow during low-flow periods.”
The Wailuku system, owned and operated today by the Wailuku Water Company, LLC, was built to feed sugarcane in West Maui and was once run by the Wailuku Sugar Company, a subsidiary of C. Brewer & Co. The system diverts an average of about 67 million gallons of water a day, and for most of the 1900s that amount was split between Wailuku Sugar and Hawaiian Commercial & Sugar under a water-sharing agreement. Today, however, HC&S receives the bulk of the water, while WWC, which stopped growing sugar in 1988, divides the rest among more than 30 users.
In 1988, Wailuku Sugar Company became Wailuku Agribusiness Co., Inc., which later became Wailuku Water Company. Although WWC has sold most of its land surrounding the ditch system, it currently retains the system itself, as well as 13,170 acres of land in Na Wai Eha’s watershed.
Intersection
As early as 1997, the Water Commission staff had recommended that the commission designate as groundwater management areas both the `Iao and Waihe`e aquifers of central Maui, which provide most of Maui’s drinking water. The reason for the designation recommendation is that existing and planned development exceed what is available from these two systems. Not until July 30, 2003, however, when pumping of the `Iao aquifer exceeded a threshold set by the commission, did the aquifer became a ground water management area.
Once an area is designated as a water management area, all users, both new and existing, must apply for water use permits from the commission. To determine existing and new users of the `Iao aquifer, the commission held separate hearings for the aquifer’s three separate but related sources – basal, caprock, and high-level, where the underground dikes intersect Na Wai `Eha.
By the time the commission held its public hearing for the high-level source in February 2006, Earthjustice, representing a community group called Hui O Na Wai `Eha and the Maui Tomorrow Foundation, had filed two petitions with the commission relating to surface water, one calling for an increase in the interim instream flow standards for Na Wai `Eha, and the other seeking a declaratory ruling against WWC (which was then still Wailuku Agribusiness) and HC&S for wasting diverted water.
Because of the connection between `Iao aquifer’s high-level water source and the perennial flow of Na Wai `Eha, the commission received contested case hearing requests from water use permit applicants Maui Department of Water Supply, WWC, and HC&S, as well as Hui O Na Wai `Eha/Maui Tommorrow Foundation, the Office of Hawaiian Affairs, and a Hawaiian sovereignty group called Na Aha O Na Wai `Eha Ku Moku O Mauiloa.
On February 15, 2006, the commission decided to hold a combined contested case hearing on both the high-level source applications and the petition to amend the instream flow standards. (The waste complaint was also set to go into a contested case hearing but in May 2007, Earthjustice wrote the commission a letter withdrawing its complaint without prejudice.) Except for the Hawaiian sovereignty group, all parties have been granted standing in the case.
Hoarding and Waste
Generally, the Hui/Maui Tomorrow, OHA, and the county of Maui oppose WWC’s practice of reserving the water rights on the land it sells, then entering into water delivery agreements with those landowners who need water. They’ve also argued that riparian water rights can’t be severed from the land and that any attempt by a seller to reserve appurtenant rights extinguishes those rights.
In their opening brief for the Hui and Maui Tomorrow, Earthjustice attorneys Isaac Moriwake and Kapua Sproat complain that even after WWC stopped growing sugar cane, WWC and HC&S “persist in monopolizing Na Wai `Eha’s public trust resources for their exclusive private gain. By doing so, they hold hostage the streams and communities of Na Wai `Eha and the people of Maui.”
As a result, Sproat and Moriwake continue, the diversions wreak havoc with the streams’ natural ecosystems by leaving large sections of the streams dry and preventing continuous flow to the ocean. They argue that less water in the streams means less recharge of the underlying aquifer. Wetlands, which rely on flows to the ocean, also suffer. They also note that the Water Commission is obligated to protect native Hawaii traditional and customary rights, riparian and appurtenant rights, and the rights of kuleana landowners.
In addition to the monopolization complaint, all three parties have stated their belief that HC&S and WWC are wasting a significant amount of water without any justification.
In a brief filed by OHA, attorneys Pamela Bunn and Lindsey Kasperowicz note that in 2005, WWC carried in its ditches some 27.5 mgd that had not been allocated to anyone.
“The beneficiary of WWC’s inability to find paying users for all the water it diverted from the Na Wai `Eha streams was HC&S. Since 1924, HC&S’s share of the water (in addition to its own diversions) was 42 percent of the water from Waihe`e Ditch and 50 percent of the water from Spreckels Ditch, or approximately 14.81 mgd. However, unable to dispose of the ‘unallocated flow’ to other users, WWC reached an ‘agreement in principle’ to deliver an additional 12 mgd from Waihe`e and Spreckels ditches to HC&S for four years, which it anticipated would generate an additional $375,000 in revenue. Now, HC&S receives all of the unused flow from those ditches, approximately 39 mgd,” they say.
The groups claim that HC&S’s Waihe`e-Hopoi fields and `Iao-Waipaku fields are a repository for WWC’s excess water, taking almost 80 percent of the water diverted from the Na Wai `Eha streams. Even with all this extra water, OHA’s attorneys point out that “HC&S contends that it cannot give up a drop of the water to satisfy the public trust uses of the streams.”
They go on to attack HC&S’s water use claims.
“HC&S appears unable to decide what its water use on the Waihe`e-Hopoi and `Iao-Waikapu fields actually is, let alone demonstrate that it is reasonable-beneficial,”
When the commission sought information from HC&S about its water use in 2004, the company initially responded that, based on historical averages, it used about 8,775 gallons per acre per day over the 5,300 acres that make up its West Maui fields.
“Pressed further, HC&S provided figures indicating that, over the period 2000 through 2004, the 3,950-acre Waihe`e-Hopoi fields used an average of 9,095 gallons per acre per day, more than double the average 4,485 GAD [gallons/acre/day] used on the 1,350-acre `Iao-Waikapu fields. It explained that the difference was due to differences in soil types and climate, with the Waihe`e-Hopoi fields receiving less rainfall and having higher temperatures and wind velocities, and thus higher evapotranspiration. Months later, it purported to have examined its data and claimed that the `Iao-Waikapu fields actually used an average of 8,041 GAD over that time period.
“HC&S apparently has now decided that the commission will look more favorably on outright unmitigated waste than it will on such over-application of water. It claims that its past data is unreliable, and that, notwithstanding the climatological and physical differences that previously resulted in higher water consumption by the Waihe`e-Hopoi fields, its water used for the period 2004 through 2006 averaged 7,716 GAD on the `Iao-Waikapu fields, and 6,826 GAD on the Waihe`e-Hopoi fields, with an average of 9 mgd of unaccounted-for waste, which it attributes primarily to seepage from its unlined reservoir,” they write, adding that “this outrageous waste” is almost enough water to restore North Waiehu, South Waiehu and Waikapu streams to their natural flows.
They cite estimates by a Dr. Ali Fares, a hydrologist/soil scientist who developed software for the Water Commission to estimate irrigation requirements throughout the state, that the optimal irrigation requirements for HC&S’s `Iao-Waikapu fields is 5,150 GAD and 6,280 GAD for the Waihe`e-Hopoi fields.
“HC&S’s reported useage exceeds this amount by 50 percent with respect to the `Iao-Waikapu fields and 20 percent with respect to the Waihe`e-Hopoi fields,” they write, adding that, on average, HC&S applies about 8 mgd excess irrigation to its West Maui fields.
That 8 mgd, “together with the 9 mgd in unaccounted-for waste, amounts to 17 mgd of Na Wai `Eha water that is diverted from public trust uses and simply squandered, and HC&S has apparently not even considered any means to mitigate the waste,” they wrote.
The Users
In its initial filing, the WWC argues that reasonable system losses are allowable and that “a 25 percent system loss does not constitute waste.” Both HC&S and WWC argue that it is up to Hui O Na Wai `Eha and the Maui Tomorrow Foundation to justify their petition to increase the interim instream flow standards. WWC and HC&S argue that the groups failed to specify amounts of water needed for instream uses and to provide evidence justifying any increase in the IIFS.
Claiming it has no specifics on instream uses to which it can respond, HC&S has chosen to focus on the importance of existing offstream uses.
While HC&S’s 5,300 acres of fields in West Maui make up only a small fraction of the 35,000 acres it cultivates on Maui, HC&S attorneys David Schulmeister and Elijah Yip wrote that the impact on HC&S, and on the public, of a significant reduction in Na Wai `Eha water must be assessed “by considering the entire chain of consequences that would flow to the overall operations of HC&S and its affiliated entities and to the surrounding communities of Maui and the State of Hawai`i.”
A company’s “private gain” is not necessarily a bad thing, especially if the public interest is being served at the same time, they argued. To demonstrate the benefits HC&S provides to public, they note that parent company Alexander & Baldwin’s agribusiness sector, which includes HC&S, Kaua`i Coffee Company, and two trucking and commercial services, generated $127.4 million in revenue in 2006, with operating profits of $6.9 million (5.4 percent). Also, HC&S employs 800 full-time workers on Maui, spends more than $100 million a year on Maui, and has a contract to provide Maui Electric Company with electricity until 2014. (Electricity accounted for 20 percent of A&B’s 2006 agribusiness sector revenues.)
Schulmeister and Yip pointed out that that also face a petition filed by the Native Hawaiian Legal Corporation to amend flows in 27 East Maui streams diverted by A&B and that the company cannot secure a long-term lease for those waters until it completes an environmental assessment or impact statement. At the same time, the Hui/Maui Tomorrow petition threatens HC&S’s West Maui water supply.
“The ‘double jeopardy’ to HC&S posed by the potential curtailment of its access to irrigation water from multiple streams in both East and West Maui is a matter of great concern to HC&S. While a reduction of diversions from any particular stream, standing alone, might be viewed as having a negligible impact to HC&S, reduction of diversions from multiple streams could easily put HC&S out of business. For this reason, HC&S has little choice but to zealously guard its interest in being able to continue its existing uses on a stream by stream basis,” they write.
WWC’s attorney Paul Mancini in his arguments suggests that the county’s policy to restrict the use of domestic water for irrigation or agricultural purposes has increased the demand on WWC for non-potable water. He adds that the Hawai`i Supreme Court ruled in the Waiahole case that, among other things, agricultural and domestic water uses are in the public interest. He also describes the various uses of water from the system and how they’ve changed over time.
Historically, Wailuku Sugar Company irrigated about 5,250 acres with about 45 mgd, Mancini says, adding that from 1987 to 2005, HC&S took 35 percent of the diverted water, WWC took about 53 percent, kuleana users took 10 percent, and the county took 2 percent. By 2005, HC&S’s use had increased to about 79 percent, kuleana use remained constant, the county used 4 percent, and about 7 percent was used under WWC’s water delivery agreements. Today, WWC has water delivery agreements and licenses with about 35 agricultural and non-agricultural users. While WWC does supply water to construction companies working on housing projects, most of its users are agricultural, he says.
While the county has argued against WWC’s selling of water, Mancini notes that the county had required the owners or developers of several agricultural subdivisions — including Wailuku Country Estates, Waikapu Ranch and Ko`olau Cattle Company’s Malaihi Ag Subdivision — to “obtain a non-potable water source for irrigation purposes from WWC… This class of use exceeds 2 mgd.”
Contradicting HC&S’s estimate of 9 mgd in system losses, WWC estimated to be about 7.34 percent, or about 5 mgd, which Mancini says, “appeared to be acceptable.”
He adds that the annual flows in `Iao and Waihe`e streams have decreased from 41.5 billion gallons in 1987 to 34 billion gallons in 2005, with diversions similarly decreasing. In 2005, WWC diverted 18.4 billion gallons, down from 28 billion gallons in 1987.
Today, although the WWC has set its intakes to accept a maximum of 76.5 mgd, Mancini says that the current average “ranges from 45-65 mgd, depending on user needs and stream flows.”
Combining its own observations with USGS measurements, WWC estimates that it diverts 40-60 percent of North Waiehu Stream, 60-80 percent of Waikapu Stream, 30-50 percent of `Iao Stream, and 70-90 percent of Waihe`e Stream.
For Further Reading:
In February and March of 2006 and in January 2007, Environment Hawai`i published several articles that will provide additional background to the current dispute over West Maui surface water:
— Teresa Dawson
Volume 18, Number 6 December 2007
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