Commission Gains Funds, New Tools To Pin Down Water Use, Stream Needs

“It’s a baby step that should have been taken a long time ago,” Water Commissioner Lawrence Miike said about his agency’s renewed effort to document and verify all stream diversions in the state.

In 2005, the Legislature gave the Commission on Water Resource Management $650,000 to investigate and verify of all documented surface water users, a task that began more than 15 years ago, but has never been completed. And at its June 21 meeting, the commission authorized its chair, Peter Young, to enter into a contract with a consultant to carry out the work.

When the state Water Code became law in 1987, it required existing water users to declare their use to the commission by May 31, 1989. Since then, new water users have also been required to declare the amount and location of their stream diversions or wells. According to commission planner Ed Sakoda, 2,386 ground and surface water declarations had been made as of September 1992, of which 2,175 were deemed complete.

“The data obtained from these declarations were not adequately verified or confirmed,” he told the commission at its June meeting. Although the commission began verification inspections in the summer of 1990 and by June 1992 had documented stream diversions in various parts of O`ahu, “progress was slow due to staffing and resource limitations,” Sakoda said, adding that contractors later hired by the commission to continue the work suffered similar constraints.

Without an accurate record of how many stream water users there are, how much water they’re using, and what use the water is being put to, the Water Commission cannot improve its interim instream flow standards (IIFS) or set permanent ones. Instream flow standards are the minimum amount of water that the commission decides must remain in the stream for instream uses – recreation, aesthetics, habitat for stream life, etc. – once they’re weighed against offstream uses, i.e., agriculture, energy generation, landscape watering, and municipal drinking water.

Of the 2,175 declarations on record, 1,260 are for surface water diversions; the rest are for wells. Sakoda explained that the contractor will be charged with locating the diversions with a global positioning system (GPS); taking photos, making schematic drawings and written descriptions of diversions; identifying the size and restriction of the infrastructure involved; and developing a standardized field methodology.

“We may or may not measure each diversion, [since] a single flow measurement will only indicate the flow at that time,” he said.

Sakoda, responding to a question by Miike about the legal status of undeclared users, added that owners of any undocumented diversions that are discovered during the course of the investigation will be required to file for after-the-fact diversion permits.

“They may have been there for 50 years, but if we don’t’ know about it, we’ll use that process to make a record of who they are,” Sakoda said.

At the meeting, Jonathan Scheuer, with the Office of Hawaiian Affairs, asked the commission for the contractor’s name and how the commission planned to prioritize its efforts. OHA had lobbied for the project, he said, and, “We just want to make sure this is a really successful project and accomplishes what it sets out to accomplish.” He suggested that the commission focus on former sugarcane plantation areas or candidate Blue Ribbon streams, and added that it was important that the contractor document how much water remains in the stream, not just the diverted amount.

Chair Young noted that some streams have been more thoroughly studied than others, suggesting that data abundance might also be a factor in prioritizing study areas. As to who will be conducting the investigations, Young said that the contractor hadn’t been selected yet.

Whichever streams are studied first, Scheuer asked that the Department of Land and Natural Resources’ Division of Conservation and Resources Enforcement and the Department of the Attorney General be involved in the inspections so that any potential violations can be properly documented and addressed. He also asked that the commission evaluate the uses being made of the diverted water.

“If it’s not a productive use, then obviously it’s a diversion that should be removed, and there should be some accounting the in the protocol for that to be done in an enforceable way,” Scheuer said.

Finally, he suggested that the commission consider spot-checking certain diversions.

“There are places you might suspect there are known diversions not being put to good use. It may not be the best to call ahead and say, ‘We’re going to be here in two weeks.’ … This was a problem, certainly, in the case of the Wailuku Water System. They were dumping water in one area, staff called and said we’re coming to visit on this day and, lo and behold, when they showed up there wasn’t any dumping in that area because they had switched where they were dumping the water. So, I think there needs to be a strategy on this,” Scheuer said.

Miike warned Scheuer that he shouldn’t expect the project to “be the whole vehicle for enforcement and everything else,” and that it was just a small step in the commission’s efforts to manage surface water use and set instream flow standards.

Even so, Scheuer explained, the field investigations presented a good opportunity to collect information with broader management and enforcement value.

“We know there are diversions out there … but the water is not productively used. It’d be great to see those very quickly acted on, get that water back into the stream, and those IFS ratcheted up immediately, rather than allowing people time to invent uses for them,” he said.

How much water is being taken from Hawai`i streams is just one of many factors the Water Commission needs to know when setting instream flow standards. The commission must also have an idea of how stream diversions affect the habitats of Hawai`i’s native organisms, including unique fish, snails, shrimp, and insects.

Recently, the U.S. Geological Survey released a report – the first of its kind for Hawai`i – that details the relationship between diversions and habitat availability in a handful of streams in East Maui, where an average of 163 million gallons of water a day are diverted by Alexander & Baldwin and its subsidiary East Maui Irrigation Co. to various agricultural and municipal systems in central Maui.

The Native Hawaiian Legal Corporation petitioned the Water Commission year ago to amend the interim instream flow standards for about two dozen East Maui streams and is currently involved in a contested case before the state Board of Land and Natural Resources over the diversion of some of these same streams. To help the state resolve these disputes and determine how much water, if any, needs to be returned to these diverted streams, the USGS was asked to investigate the effects of the existing stream flow diversions on stream flow, as well as the potential benefits flow restoration might have on habitat availability for several native steam-related species.

“It was agreed that our study would focus on flow and habitat, while acknowledging that the study would not allow us to predict the effects flow restoration on the abundance of species that may end up populating that habitat,” the USGS’s Steve Anthony told the Water Commission at its June 21 meeting. The study also didn’t address ephemeral streams, or water requirements for taro cultivation, aesthetic or recreational uses of streams, algae and stream insects, and reproduction and recruitment of stream fishes, shrimp, and snails.

From July 2002 to April 2004, USGS scientists, in cooperation with the Water Commission, the Maui Department of Water Supply, the Land Board, and EMI, intensively studied the hydrology and biology of five perennial streams in East Maui: Waikamoi, Honomanu, Wailuanui, Kopiliula, and Hanawi. The streams were chosen because they best represent the variety of stream types in the study area, which includes some 21 streams.

Two reports were produced from the study, one, released early last year, that describes stream flows under natural and diverted conditions, and the other, released in December, on how flow conditions affect habitat availability in the stream.

At the June meeting, USGS research hydrologist Steve Gingerich explained that he and his fellow researchers took flow, temperature, and other measurements from various reaches in each stream, considered the habitat preferences of several native stream species, plugged them into a habitat model, which determined the flow levels needed in each stream section to provide different levels of habitat availability.

“Basically, you plug in the depth, velocity, substrate… do predictions at different discharges and estimate how much habitat would be there,” Gingerich said.

The resulting report, “Effects of Surface-Water Diversions on Habitat Availability for Native Macrofauna, Northeast Maui,” states that habitat availability generally decreases for all modeled species as flow decreases from natural conditions. Those species include several goby species (`o`opu alamo`o, nopili, nakea, nakea,), hihiwai snails, and `opae shrimp.

“The exception is at Hanawi lower and middle sites, where the amount of habitat available under diverted conditions is virtually the same as would be available under natural conditions,” the report states. Despite a diversion of about five cubic feet of water per second, the flow in Hanawi Stream remains constant because a large spring downstream.

Gingerich noted that habitat availability spikes when water is first returned to a stream, but “kind of flattens out at higher flows. You don’t really gain that much more habitat” past a certain point, he said.

For example, the flow in Honomanu Stream, which goes completely dry below its diversion, would be about nine cubic feet of water per second under natural conditions. Under the USGS’s model, an addition of one cubic foot of water per second would increase habitat availability from zero to 50 percent of natural conditions, and an addition of four to 4.5 cubic feet per second would increase available habitat to 90 percent of natural conditions.

Another example: Under diverted conditions, the middle reach of Kopiliula Stream has a base flow of 1.2 cubic feet per second. Under natural conditions, its flow would be at most 6.5 cubic feet of water per second. According to the USGS report, returning about a 5 cubic feet per second of water there would increase the available `o`opu habitat from about 52 percent to 90 percent of pre-diversion conditions.

Using this report, Gingerich said, the Water Commission can now select a target, say 50 or 90 percent of natural habitat, and determine how much additional water, if any, needs to be returned to each stream in the study area to hit that target.

“All of this information is available for the staff to plug in and get some numbers that answer part of the story,” Gingerich said.
— Teresa Dawson

In July, the Water Commission issued its third decision in the long-running Waiahole Ditch contested case (initiated in 1994). Waiahole 3, as we’ll call it, tweaked the decision and order issued in 2000 when the commission issued Waiahole 2. Among the more controversial provisions of Waiahole 3 was the decision by four commissioners to allocate 750,000 gallons a day of water to Pu`u Makakilo golf course – plans for which have been abandoned with prejudice (the clubhouse has actually been dismantled).

Dissents were cast by the two ex-officio members of the commission – Land Board chair Peter Young (who serves also as chair of the commission) and Department of Health administrator Chiyome Fukino. They protested the allocation of water to Pu`u Makakilo, disagreed with the majority decision to establish what is in effect a reservation of water for future offstream use. Young wrote: “While I agree with the majority’s current treatment that the unpermitted remainder should be used to augment stream flow, I diverge from the majority’s view that the unpermitted remainder is to be left in the streams as some commodity awaiting future permitting to some offstream use.” Instead, he argued that the “unpermitted” water (water neither included in the portion of water allocated to windward streams nor allocated to leeward users) should be apportioned “to each windward stream as part” of the interim instream flow standard of each stream.

The majority disagreed and even offered a rebuttal to Young and Fukino in the published decision and order (available online at the CWRM website: [url=http://www.state.hi.us/dlnr/cwrm)]www.state.hi.us/dlnr/cwrm)[/url]

The disagreement may be moot. In what seems to be a record of sorts, the commission’s Waiahole decision is now being presented – a third time – to the Supreme Court. On August 12, Earthjustice attorneys representing two of the parties, Hakipu`u Ohana and Ka Lahui Hawai`i, gave the commission notice of their appeal.

— Patricia Tummons

Volume 17, Number 3 September 2006