“Hopefully we can put to rest, at least for a couple years, all the East Maui water issues,” Mike Buck said at the October meeting of the state Commission on Water Resource Management.
Alas, that would not be the case when the commission took up its staff’s recommendations a month later to amend instream flow standards for streams in East Maui while also approving reservations for non-potable water requested by the Department of Hawaiian Home Lands.
Staff had recommended increasing the flow standards for eight streams that were part of a 2021 petition by the Sierra Club of Hawai‘i to amend interim instream flow standards, and for two streams that were part of a 2001 petition filed by the Native Hawaiian Legal Corporation and Maui Tomorrow.
However, the staff also recommended reducing the flow standards for three streams whose standards were increased as a result of a 2018 decision and order in the contested case on the 2001 petition.
Commission hydrologist Ayron Strauch explained that by reducing the flow standards for West Wailuaiki, Waikamoi, and Waiohue streams, which do not appear to support significant amounts of native stream biota, more water would be available to further restore Honomanū and Nua`ailua streams, where native species are thriving.
“We’re getting more bang for our buck,” he said.
What’s more, the IIFS reductions for those three streams would also help accommodate the DHHL’s reservation request, as well as other offstream uses such as diversified agriculture on tens of thousands of acres in Central Maui owned by Mahi Pono.
Jerome Kekiwi, Jr., president of Nā Moku Aupuni o Ko`olau Hui, said he supported the DHHL reservations, as well as farming and ranching, but called the proposal to reduce minimum flows in the three streams “kinda heartbreaking.”
“Our kupuna fought for years for this restoration,” he told the commission.
To avoid eroding whatever trust the commission had with the East Maui community, the commission voted to defer a decision on those recommendations dealing with the streams that were part of the 2018 decision and order, as well as the portion of the DHHL reservation that was to be met by the proposed reductions.
In contrast, the staff recommendations for the streams included in the Sierra Club petition, as well as a DHHL reservation for about 1.3 million gallons a day from those streams, practically sailed through.
The petition sought restoration of about a dozen streams in the Huelo region of East Maui, but after extensive stream surveys, commission staff determined that only eight should have their IIFS increased.
The Sierra Club did not object but did offer some amendments to staff’s suite of recommendations.
Native Hawaiian Legal Corporation attorney Ashley Obrey also did not oppose the recommendations but testified that the increased IIFS in the Huelo region should not come at the expense of streams that were part of the 2018 decision and order.
In written testimony, the Sierra Club stated, “After more than a century of complete devastation for dozens of streams in East Maui, the staff submittal for agenda item B-5 is progress. …
“The Sierra Club is pleased that water will finally be allowed to flow in some of these streams, although we do think more water should be returned under the Water Commission’s own standards. Both this Commission and the Division of Aquatic Resources have concluded that a minimum of 64 percent of each stream’s median base flow is necessary to provide suitable habitat conditions for recruitment, growth, and reproduction of native stream animals. Yet, few, if any, of these streams are being restored to that level in their upper reaches. And three streams will continue to see all their water taken.”
In addition to approving the Huelo recommendations, the commission also required its staff to convene quarterly meetings with stakeholders to discuss the status of diversion modifications to meet the new IIFS, and specified that the commission revisit the amended IIFS four years after they are implemented. Both of those amendments were recommended by the Sierra Club.
Spread Thin
When it came to amending the IIFS in the Nāhiku, Ke`anae, and Honomanū regions of East Maui covered by the 2018 decision and order, a commission staff report noted that the order did not accommodate water to be used by the DHHL because the agency had not requested any at the time.
“In the balance with non-instream water use, the Commission’s 2018 Decision and Order provided for public trust uses of domestic water and 90 percent of the reasonable irrigation needs of the important agricultural lands of Central Maui serviced by the EMI system,” a commission staff report states.
In December 2020, the DHHL formally requested a reservation of about 11 mgd from East Maui for its non-potable needs in Central Maui. “As DHHL’s water needs are a public trust use that must be considered in the balancing of water management, the 2018 Decision and Order must also be revisited to address this deficiency,” the report continues.
The commission had approved the reservation of 1.3 mgd from the Huelo region. Staff proposed that the rest of the DHHL’s reservation request — 9.85 mgd —be met by streams in the other three regions.
The staff report noted that there are tens of thousands of acres of agricultural land outside of East Maui that rely on the streams for irrigation: 26,600 acres owned by Mahi Pono, Maui County’s 709-acre Kula Agriculture Park, and 800 acres of other farm land.
Commission staff did not recommend that Mahi Pono use more groundwater resources as an alternative water source. It stated that the large-scale furrow irrigation and use of unlined reservoirs during the plantation days artificially recharged the Paia and Kahului aquifer systems.
“Based on the information presented, it appears that increasing reliance on ground water while simultaneously reducing surface water supplies may not be a feasible alternative. For Maui [Department of Water Supply], additional water is available from the Makawao aquifer system; however, the high cost of pumping to meet Upcountry demands may be financially burdensome on Maui’s limited customer base,” the report stated.
The DHHL’s use of 9.85 mgd of stream water from the Nāhiku, Ke‘anae, and Honomanū̄ regions would represent 22 percent of the median streamflow and all of the water in the stream at times of its lowest flows.
Strauch reported that for some streams, climate change has caused flows to drop by a quarter since the 1980s.
“We’re going to be in a shortage just for public trust uses, not including reasonable, beneficial [offstream] uses,” he said.
Data
In the months preceding the commission’s November 19 meeting, Strauch briefed commissioners on results from the dozens of East Maui stream surveys that commission staff and the Department of Land and Natural Resources’ Division of Aquatic Resources conducted over the past few years.
Generally speaking, they found that native species that live in and around streams terminating in waterfalls (such as Waikamoi) benefitted less from restoration than those that lived in streams that flowed into estuaries.
But even for West Wailuaiki and Waihoue streams, which empty into estuaries and support amphidromous species, they found that full restoration did not benefit native stream organisms any more than the partial restoration that had occurred after the commission amended their IIFS in 2010.
For Waikamoi, staff recommended reducing the IIFS to 0.17 mgd, roughly 7 percent of the previous IIFS of 2.46 mgd.
West Wailuaiki and Waiohue streams had been fully restored following the end of sugar cultivation in 2016, and the 2018 decision amended their IIFS to retain that state.
The proposed IIFS for West Wailuaiki would be 2.33 mgd, about one quarter of the stream’s median flow of nearly 9 mgd. For Waiohue, the proposed IIFS of 1.91 mgd is barely a quarter of the previous median flow.
On the other hand, staff proposed increasing the IIFS for Honomanū and Nua`ailua, which are both relatively small streams. For Honomanū, which has an IIFS of 2.71 mgd, staff recommended full restoration at three of the four diversions along the stream. For Nua`ailua, which has an IIFS of 0.18, staff recommended full restoration.
To Nā Moku’s Kekiwi, it didn’t seem fair to walk back any restoration of streams that had been diverted for 150 years based on only five years of data collection.
NHLC attorney Obrey also opposed the IIFS proposals for West Wailuaiki, Waikamoi, and Waiohue. She noted that it took nearly two decades to resolve the petitions to amend the IIFS for about two dozen East Maui streams that were used for taro growing and other cultural practices. Reducing flows in those three streams would undo overnight the progress that had been made, and would do so without adequate consultation with Nā Moku, she said.
“There is gathering in these streams,” she continued. She also questioned whether enough time had passed to unequivocally say that native species won’t return to them.
She asked the commission to defer the matter, warning that she would request a contested case hearing on it, as well as on the commission’s decision for the Huelo region, if it did not.
Lucienne de Naie, a Huelo resident and member of the Sierra Club, was also shocked at the proposed IIFS reductions. She suggested that the DHHL’s water needs should not be met by taking water from the streams, but rather by ensuring that claimed reasonable and beneficial offstream uses are realistic. She noted that Mahi Pono’s water use projections “seem like they’re continually inflated.”
Attorney David Kimo Frankel, who represents the Sierra Club, testified in support of the DHHL reservation and the IIFS increases for Honomanū and Nua`ailua, but against the proposed IIFS reductions.
“Ayron is probably the smartest person in this Zoom room,” Frankel said. Nevertheless, Frankel questioned Strauch’s assumptions. “EMI has been taking water from the furthest reaches on occasion in low-flow periods. … That kind of information is important and would confound information collected by DAR and CWRM,” he said, adding, “There are a lot of components of [the ditch system’s] plumbing that do not allow for real restoration of streams. That affects the data.”
He added that there may be issues with when the data was collected, given the seasonal and annual variability of rain.
Frankel, who represented Nā Moku when he worked for the NHLC, added that it was important to honor the group’s years of struggle to restore East Maui streams, a heroic effort that was “treated with disdain and contempt by people in power.”
Helene Kau of the Maui Department of Water Supply testified that the DHHL should explore alternative sources of non-potable water, such as wastewater treatment and reclamation.
In response to the push-back on the IIFS recommendations, Strauch stressed, “We cannot expect species to recruit to Waikamoi.” He added that the proposed flow reductions in West Wailuaiki, Waiohue, and Waikamoiare “not going to affect the aquatic ecosystem both at the higher elevation and at the estuary. I hope that helps clarify.”
‘Prospectively Dire’
At least one member of the Water Commission expressed some concern that the science behind the proposed IIFS amendments may be lacking.
Commissioner Aurora Kagawa-Viviani said she agreed with testifiers that the staff analysis was incomplete. She said that while it may be beyond the commission’s remit, it did not incorporate any local or generational knowledge of the streams. There is an opportunity to fold in a more holistic analysis, she said.
Commissioner Paul Meyer, on the other hand, was fine with the IIFS recommendations. However, he was deeply concerned about how, under staff estimates, little water would be available for offstream uses if and when the new IIFS for all of East Maui are implemented. Under median flows, 64 mgd would be available for the county’s municipal uses, Mahi Pono’s and other agricultural uses, and the DHHL. But under low flow conditions, only 9 mgd would be available.
The quarterly meetings commission staff plans to host will be where stakeholders discuss how the DHHL’s reservation and water shortage plans will be implemented, Strauch said.
“Under drought conditions, there isn’t going to be enough water,” he said. In West Maui, which also faces conflicts over shortages, the commission previously voted to designate the area as a water management area to control water use. Designation triggers a long, intensive process where all water users must obtain a permit from the commission for all existing and new uses.
“We don’t have the capacity to add a designated water area to East Maui at the moment,” he said.
“I think what we’ve got here is a situation that’s prospectively dire. … Who’s going to get cut back? … You’ve got dueling public trust uses,” Meyer said.
“Coming together on a drought plan will help with that,” Strauch replied. He added that there was time to plan, since the DHHL’s reservation won’t be drawn on anytime soon. “We’re trying to plan out 30 years in advance,” he said.
Given the calls by several members of the public to defer amending the IIFS, commissioner Neil Hannahs said that all parties seemed interested in having a discussion and listening to each other. “Let’s let this dialogue occur,” he said, adding that he didn’t want to risk eroding the valuable trust the commission has built with the East Maui community, “largely on the back of our [2018] decision.”
Commission deputy director Kaleo Manuel acknowledged the benefit of conversation, but added that Strauch, who had been repeatedly praised by members of the public and commissioners for his work, is trying to balance the various uses and look at the issue holistically.
“Everyone is looking out for their own interest. We have to be the arbitrator. [More conversation] may result in better recommendations, but it might not,” Manuel said.
Meyer suggested that staff return with recommendations in six months, after interested parties have had a chance to discuss matters.
Commissioner Buck, however, said it was justifiable to at least approve the IIFS recommendations for Honomanū and Nua`ailua streams, since he said there was “good science behind that.” He made a motion to approve just those two IIFS amendments.
Strauch said staff could definitely come back in six months with new IIFS recommendations, but he seemed perplexed over the support for restoring Honomanū and Nua`ailua given the doubts expressed over the proposed IIFS reductions for Waikamoi, Waiohue, and West Wailuaiki.
“It’s hard to swallow, praising the same data for one thing and not the other. That’s just me,” he said.
Commissioner Kagawa-Viviani asked for the DHHL’s opinion.
Jonathan Scheuer, a consultant for the DHHL, was eager to have the reservations approved. Awarding a reservation only when it’s immediately needed defeats the purpose of the reservation process, he said. He added that because the department has been under-funded, other users “swept in and took control of water. Reservations are a planning tool. It indicates to all other parties, there is a reasonable basis for a public trust demand.”
He said that in other areas where the DHHL has a reservation, the department has been able to secure funding for its projects. Deferral could endanger funding, he suggested.
When the contested case hearing was going on in 2018, he said, the DHHL informed the commission that “we had unmet demands. … We didn’t object or intervene or contest the 2018 settlement, knowing it was important for those streams to be restored. … Deferral might make sense in terms of having dialogue, but deferral will reduce the ability of DHHL to fulfill its mission.”
Should the commission choose to defer the matter, he asked that it take up the DHHL’s reservation separately from any proposed IIFS amendments.
When Buck’s motion failed to receive a second, Meyer moved to accept just the IIFS recommendations and hold off on the DHHL reservation for six months.
Chair Suzanne Case, however, tweaked his motion so that everything was deferred while staff held meetings with the community, with the reservations and IIFS to be taken up separately.
Meyer said he was satisfied with the staff’s IIFS recommendations, but was willing to defer “for more appropriate discussion.”
Meyer’s amended motion was approved, with commissioner Kagawa-Viviani voting in opposition.
(For more background on this, see the Water Commission coverage in our October and November 2022 issues.)
— Teresa Dawson
For Further Reading
“Stream Surveys Find Full Restoration May Not Boost Species Abundance,” November 2022;
“Water Roundup: Waihe‘e ‘Auwai Restoration, East Maui Flow Standards, and More,” October 2022.
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