By Teresa Dawson
On February 15, the state Commission on Water Resource Management amended its June 2021 decision in the Nā Wai `Ehā contested case hearing on water use permits. The change means that Waikapū Properties now is responsible for providing water to the South Waikapū kuleana ʻauwai.
Under the original decision and order, Wailuku Water Company, LLC, was required to deliver 265,000 gallons a day into the mile-long, unlined ‘auwai that serves South Waikapū kalo farmers with priority water rights.
Following a complaint filed last August by Hui o Nā Wai ‘Ehā that the farmers were not receiving the water they were due, commission staff determined that WWC was providing the required amount, but it just wasn’t enough to reach the kuleana users.
Hui president Hōkūao Pellegrino testified to the commission last month that the farmers had been without water from their ‘auwai for 482 days, well before the commission’s order last year.
“They have not been able to cultivate kalo. Lo‘i have completely dried up, cracked and are full of weeds,” he said.
Waikapū Properties also receives water from WWC’s ditch system, which diverts water from the four streams in the area known collectively as Nā
Wai ‘Ehā (the four streams). Last October, Waikapū Properties manager Mike Atherton offered to connect a 4” pipe to his company’s 8” pipe so that
water could be directed into a lower reach of the ‘auwai, thereby minimizing some of the water loss and relieving WWC of the responsibility of meeting the kuleana users’ needs.
On February 20, with Atherton’s proposal formally incorporated into the commission’s decision and order, Waikapū Properties began piping water into the ‘auwai.
While the water actually reaches the lo‘i now, problems remain, Pellegrino told Environment Hawai‘i.
“There are very serious issues with the pipeline,” he said, referring to Waikapū Properties’ main 8” line. The line is mostly underground and is somehow not providing enough water into the ‘auwai.
“They’re saying it wasn’t well-maintained. There are a lot more issues than originally thought,” he said, adding that the company is having to hire an outside contractor to fix it.
“We’re very grateful. No doubt about that. This system is going to be more efficient,” he said.
In the meantime, the kuleana users are getting nearly half of the water they’re supposed to. And in addition to the pipelineproblems, the many months without water has left the ground parched.
Pellegrino said it took more than half a day for the water diverted into the 4” pipe to reach the first lo‘i kalo.
“There’s so much loss. The flow is low. The ditch hasn’t seen water in 16-plus months. There’s bound to be some normal saturation that needs to occur,” he said.
That goes for the lo‘i, as well. Although the water now reaches the first one, it’s not enough to fill it, he added.
Delays
“This really is going to be a short-term solution. We’re not just reliant on Waikapū Properties, but on Wailuku Water Company as well,” Pellegrino said.
Fixes to the delivery system can be expensive and right now, he said, Waikapū Properties appears willing to take on that burden. However, the Hui’s primary goal is to revive the traditional ‘auwai that taps Waikapū Stream directly.
At the commission’s meeting last month, the Alves family, which has a water use permit for 75,000 gallons a day to grow kalo ,complained in written testimony about WWC’s apparent reticence to relinquish control over the stream water resources without certain conditions being met.
“Our lack of hope that the water allocations will actually be [upheld] has gone on long enough. Just when we thought the lo‘i would again feel river water and breathe back life, we encountered another roadblock. With urgency we ask that you make it clear to all parties that the release of water into the ready pipes will happen now and not later,” the family wrote.
Before the February meeting, Avery Chumbley, president of WWC, had stated in correspondence with Water Commission deputy director Kaleo Manuel that until there was a “clear and documented understanding between all parties (CWRM, WWC, Waikapū Properties, all kuleana users) as to who is responsible for possible ruptures, leaks or failures of the piping, WWC will not allow for the tie-in off of the filter station distribution point.”
In a later email to commission chair Suzanne Case, Chumbley stated that he had informed all of the parties involved that a functioning meter needed to be installed where Waikapū Properties’ 8” pipe ties in at a filter station “prior to a delivery conversion to the pipe for the kuleana ‘auwai users.” A second meter needed to be on the 4” line before the point where water use permit holder
Clayton Suzuki receives water, he said. The difference in the amount of water flowing through the first meter and the second meter would be what Waikapū Properties should be taking for itself, around 1,800 gallons a day under the decision and order.
“These are obligations on the users under the D&O but not under our direct control of WWC and need to be complied with, as does the reported monthly usage by all permit holders off of this system,” Chumbley wrote.
At the February meeting, Chumbley repeated his argument that Waikapū Properties needed to install a functioning meter at the 8” pipe before it could take over delivering water to Suzuki and the kuleana users.
Given that the commission had expressed support at its October 19 meeting for Waikapū Properties’s proposal to install a pipe to deliver water into the ‘auwai, Commissioner Neil Hannahs asked Manuel why it was now being asked to amend the decision and order to reflect that.
“Why does this have to come back to us again? It seems like it delays the solution. It seems like a ministerial matter,” Hannahs said.
“Out of caution and reassurance,” Manuel replied. He added that later in the meeting, the commission would be asked to delegate its authority to the chair to implement the commission’s order, consistent with its intent.
“Just for clarity, we’re bringing something more formal to the commission so all users understand what’s expected of them in order to meet the intent of the commission,” he said.
“That’s the nice way of putting it,” chair Case added. “We think we have this authority and that you want us to do this, but to the extent anyone thinks it’s not clear, we’re bringing this back to finalize it and asking for delegation to make it crystal clear.”
To Chumbley, Case asked, “What would stop us from ensuring that the pipe is turned on tomorrow or today?”
Chumbley argued that because the commission’s decision and order requires permittees to report their water usage, an operational meter at the filter station would be important for reporting purposes.
“Commissioners can weigh in on this, but I’m pretty sure everyone thinks it’s more important to get the water going than measure it at this point,” Case said.
She added that WWC had up until recently been providing water from Waikapū Stream to Kumu Farms, which is not authorized by the decision and order, and without it being measured by WWC. “And now we’re kind of arguing about not providing water to people who are authorized to have it until we’re triple sure all the meters are working right?” she said.
Chumbley corrected her, “The water delivered to Kumu Farms was measured. It was being measured at a lower filter station.”
“Right. It was measured, but not authorized, and so I’m not clear why we are arguing over this and not providing water while arguing over it,” she replied.
After a few beats of silence she continued, “I just want to make real sure that whatever the commission does today makes it really clear you turn on the water to the ‘auwai today.”
The water was eventually turned on within a week, but to the Hui and the kuleana users, the whole process underscored the need to revive the traditional ‘auwai.
Goodbye, Middlemen
At last month’s commission meeting, Pellegrino announced that the Hui, the Alves family, and kuleana permittee Crystal Smythe had sent a certified letter to Chumbley and his wife asking for access through their personal property, where the traditional ‘auwai is located.
They also asked the commission for its support and approval “to allow access for the restoration of the historical and traditional South Waikapū kuleana ‘auwai not only as a means to be independent of Wailuku Water Co.’s system, but because it is their traditional and customary and appurtenant right that according to the Water Code 174C, shall be upheld and protected by this very commission.”
The commission took no action on their request. And as of late last month, Chumbley had not responded to their letter, Pellegrino told Environment Hawai‘i.
Back in 2017, when the Hui, the Maui Tomorrow Foundation, and the Office of Hawaiian affairs filed their joint proposed findings of fact, conclusions of law, and decision and order in the Nā Wai ‘Ehā water use permit contested case hearing, they included a long section on access to kuleana water courses.
They noted, “kuleana in Waikapū historically up until the late 1940s received water through an ‘auwai system directly connected to Waikapū Stream, but the plantation eventually redirected the ‘auwai system to connect to the plantation’s reservoir system instead.”
WWC and Hawaiian Commercial & Sugar “have expressly and uniformly acknowledged and documented their obligations to satisfy kuleana rights in numerous written water agreements dating back almost a century. In the companies’ original 1924 agreement dividing Nā Wai ‘Ehā’s stream flows, they expressly acknowledged that their diversions were ‘subject to existing water rights of third parties therein,’ including ‘for all kuleana of such third parties,’” they wrote.
According to Earthjustice attorney Isaac Moriwake, who represents the Hui and Maui Tomorrow Foundation, kuleana water delivery had also been raised in the contested case hearing on Nā Wai ‘Ehā’s interim instream flow standards, which preceded the contested case on water use permits.
By 2017, “we had a solidly established record on this issue,” he said.
Whether or not Chumbley will allow access to the traditional ‘auwai remains to be seen. When the issue came up during the commission’s October meeting, he referred to the alleged traditional ‘auwai use and alleged po‘owai on his property and claimed that the current topography wouldn’t allow for its revival.
If he maintains that position, a fight in court could follow.
“This is new for our modern water rights legal framework,” Moriwake said. Kuleana water access rights are “already established in terms of the legal principle … but as far as the Water Commission goes, the Water Code, it hasn’t come up in a litigation context where the commission has had to make a call yet. That’s where we’re potentially headed.”
Commission Orders More Flow For Wailuku Town ‘Auwai Users
Like Waikapū, the case of the Wailuku Town kuleana ‘auwai is also one in which kuleana kalo growers were not receiving the water they’re entitled to under permits the Water Commission granted them last year.
The commission’s June 2021 decision and order in the Nā Wai ‘Ehā contested case requires Wailuku Water Company to deliver 88,000 gallons a day into the ‘auwai, which serves four permittees.
Since the commission issued the order, the three permittees at the end of the ‘auwai had not been receiving enough water, or sometimes any water, for their kalo and other plants.
Last month, Environment Hawai‘i reported on the growing conflict between WWC president Avery Chumbley and
Robert Street, who farms on property owned by permittee Jordanella Ciotti. Street, who has argued he is exercising his rights to access water for his kalo, has been opening the chained valve that WWC uses to control the delivery of water into the ‘auwai. Chumbley has accused Street of trespassing and vandalism. Both turned to the Water Commission to help resolve the matter.
Commission staff have said they need to better understand how much water is being lost as it travels along the ‘auwai, which runs underground for some distance and is unlined elsewhere.
On February 15, the commission voted to issue an interim water use permit to the three permittees at the end of the line: Ciotti, Mary Ann Velez, and Greg Ibara. The commission required them to modify the ‘auwai to ensure that Ibara receives 50 percent of the water after Kalua Road, Velez 40 percent, and Ciotti the remaining 10 percent.
The commission also ordered WWC to fully open the control valve where water enters the ‘auwai at Waihe‘e Ditch and the valve near the first permittee on the ‘auwai, Imua Family Services. This is where WWC controls the amount of water that flows through the rest of the ‘auwai.
The commission ordered the valves be immediately opened and to remain open up to 60 days to provide immediate relief to the permittees at the end of the ‘auwai and to allow commission staff to assess system losses.
WWC also must provide photos of its flowmeter at the distribution point for the pipeline, “showing a fully opened valve, estimated at not less than 500 [gallons per minute],” according to a staff report. It also had to secure the 4” control valve “with astrong, anti-theft lock to prevent tampering while the commission investigates system losses.”
Finally, the commission ordered Mahi Pono, LLC, to make improvements to Spreckels Ditch, which the ‘auwai empties into, to remedy stagnant flow conditions.
A commission staff report points out that the three permittees have recognized appurtenant rights totaling 347,100 gpd and Velez and Ciotti have additional domestic use rights totaling 1,964 gpd. In contrast, other water use permittees that are downstream of the ‘auwai have reported no problems receiving their allocated amounts from WWC’s Waihe‘e Ditch. All these permittees are commercial users, including Mahi Pono, Maui Tropical Plantation, MMK Maui, and Pohakulepo Recycling. Their total water allocations are close to 6 million gallons a day.
The report also states that the high volume of water delivered to Mahi Pono may be a factor in water backing up into the Spreckels Ditch “resulting in stagnant conditions makai of the Velez, Ciotti, and Ibara properties.”
Before the commission voted to approve its staff’s recommendations on the interim permits and system loss investigation, WWC’s Chumbley expressed his concern about opening the valves for a full 60 days with a minimum flow of 500 gallons perminute, which is what staff had originally recommended.
“That’s more than nine times the allocated amount,” Chumbley said, He noted that except for a spike on January 12, flows in the Waihe‘e River, the source for WWC’s Waihe‘e Ditch, have been low since the start of the year.
A flow of 500 gpd through the ‘auwai “could be considered waste,” he said, adding that he was happy to work with staff on conducting seepage runs. “We don’t need to do it 60 days. … Delivering that much water to this ‘auwai is going to cause moreproblems,” he said.
Hui o Nā Wai ‘Ehā’s Pellegrino testified that problems with the Wailuku Town ‘auwai are more complex than originally thought. Among other things, he said there are undisclosed, non-permitted users taking water from the system.
With regard to whether or not the valves needed to be fully open for 60 days, Pellegrino reminded the commission that the system had been left dry for months. It’s going to take a lot of water to saturate the ground, he said.
Based on the public testimony, commissioner Hannahs recommended that the staff’s recommendation be amended to require that the valves be open up to 60 days. “We don’t want to waste water,” he said. He also recommended changes to the staff’s recommendation on fixes to the Spreckels Ditch to be more general.
The commission approved both recommendations.
Authority Delegation
To facilitate the timely resolution of problems surrounding the Water Commission’s June 2021 decision and order in the Nā Wai ‘Ehā contested case hearing, commission staff recommended last month that the commission delegate its authority to the chair to implement and/or modify the order.
Although parties to the contested case hearing have appealed the D&O to the state Supreme Court, the order “has not been stayed and as appropriate can be implemented and modified by the commission,” a February 15 staff report states.
WWC’s Chumbley testified that he did not think this was necessary. His attorney, James Geiger, suggested the commission consider removing the authority to modify the order.
The commission voted to approve its staff’s recommendation as submitted.
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