Interested in seeing water restored to diverted streams to protect stream life or asserting your rights as a Native Hawaiian or taro farmer? Don’t expect the state Water Commission to have a ready answer.
Over the past year, staff with the Commission on Water Resource Management’s Stream Protection and Management Branch convened a series of meetings with several members of the community who have long been involved in water issues. The group discussed a wide range of issues, but focused mainly on two areas: how to choose streams worthy of extra protection and how to set instream flow standards.
To the confusion of some group members, the meetings ended abruptly in October, and to date, no group work product has been presented to the commission regarding stream protection, though one had been expected. CWRM director Yvonne Izu told Environment Hawai‘i that her staff plans to bring an instream flow standard proposal to the commission soon. Some people, however, are not willing to wait.
While the group last year was asking itself questions such as, “What is a policy?” “What questions are we trying to solve?” and how to define “high natural quality” and “higher level of scrutiny,” the public interest law firm Earthjustice petitioned the commission to amend the instream flow standards for streams in West Maui. The petition was on behalf of two community groups — Hui O Na Wai `Eha and Maui Tomorrow Foundation, Inc. – and addresses flows in Waihe‘e, North and South Waiehu, ‘Iao and Waikapu streams and their tributaries.
Petitions aren’t silver bullets. None of those filed by Earthjustice, the Native Hawai ian Legal Corporation (2001), or the Punalu‘u Community Association (1994) to protect streams or surface water has been resolved. Still, petitions and contested cases are light ning rods for attention and, in some cases, funds for research.
The Water Commission’s 2005 report to the Legislature on its efforts to identify rivers and streams worthy of protection highlights the U.S.Geological Survey’s East Maui Stream study (spurred by the Native Hawaiian Legal Corporation) which is being funded by the USGS, the Water Commission, the Depart ment of Land and Natural Resources’ Land Division, the County of Maui Department of Water Supply, and Alexander & Baldwin, whose irrigation ditches are filled with water diverted from East Maui streams. The report also mentions the Punalu‘u Watershed Alliance (on windward O‘ahu) and the Lalakea Alternative Mitigation Project (in Hamakua, Hawai‘i), both of which support studies intended to develop information to be used in regulating stream flow.
The report fails to mention that all of these efforts were, in large measure, the result of community frustration over the commission’s failure to protect streams. When it comes to developing stream protection policies or put ting them into play, the Water Commission seems incapable of making the first move.
SPAM I
It’s not that the commission hasn’t tried to address the issue. In 1990, CWRM adopted a Hawai‘i Stream Assessment, a joint project with the National Park Service that invento ried and described the state’s perennial streams and their aquatic, riparian, cultural and recre ational values. A few years later, CWRM assembled a Stream Protection and Manage ment (SPAM) task force, which held frequent meetings across the state to come up with recommendations to the commission on what the state needed to do to protect streams. The group included Meredith Ching of Alexander & Baldwin (now herself on the commission), Bill Devick of the Department of Land and Natural Resources’ Division of Aquatic Re sources, Kaua‘i Council member Ron Kouchi, Native Hawaiian Legal Corporation attorney Alan Murakami, BishopEstate/Kamehameha Schools trustee Oswald Stender or his designee, Sydney Keliipuleole, Andy Yuen of the U.S. Fish and Wildlife Service, and Marjorie Ziegler of the Sierra Club Legal Defense Fund (now known as Earthjustice).
In May 1994, the Water Commission staff, using SPAM’s work as its basis, presented its draft recommendations to the commission. The recommendations laid out how streams would be chosen for or excluded from extra protection and how streams worthy of pro tection would be treated; how agencies would coordinate to protect streams; how CWRM’s jurisdiction should be expanded; funding and staffing requirements; avenues for community participation; ways to restore streams; how to protect Hawaiian rights; how to resolve water disputes; the role of scientific information in stream management; methods for integrating any necessary rule changes into the Hawai‘i Water Plan; plans to collect and manage data; and the creation of landowner incentives for stream protection.
That summer, CWRM presented the SPAM recommendations to the public, where they were subjected to harsh criticism. In the 11 years since, the commission has not taken up the subject again, although in annual reports to the Legislature, it asserts that the proposed rule changes are undergoing revi sion. The commission also completed a Multi-Attribute Prioritization of Streams (MAPS) and in 2002, set up a Stream Protection Management Branch, with an Instream Use Section and a Surface Water Regulation Section. In its report on those activities to the Legislature, the commission acknowledged that, in the past, it “has proceeded cautiously in regards to stream protection and man agement, responding to issues only as they arise… While the commission now has the fundamental resources to examine surface water issues [a new surface water hydrologist], it must be recognized that building the foundation on an appropriate statewide program will require time, additional funding and staffing.”
At the commission’s February 2004 meeting, its staff presented a “pristine streams” policy for consideration. The accompanying staff report said the policy was an effort to fulfill the commission’s legislative mandate to identify streams of high natural quality. To some, however, the policy seemed merely a means of determining what streams are on and off the table for potential water use development. Out of more than 300 streams statewide, CWRM staff came up with a list of 11 potential pristine streams. And those streams were mostly inaccessible or otherwise not threatened by development.
As Kaua‘i resident Carol Wilcox wrote in a February 19 letter to the commission, “Confining the list to streams such as Nualolo, which (being short, fast, lacking in estuarine values, remote, and totally within a state park) is at virtually no risk of diversion or channelization, is more a symbolic gesture rather than a meaningful protection of our surface water resources.”
Wilcox added that the commission’s deci sion to exclude diverted streams from the list was unreasonable. “There are few if any ut terly free flowing waterways left in Hawai‘i, so criteria must be flexible if one expects to provide stream protection. In any event, being on this list is simply a flag for additional scrutiny. And it does not preclude action… I urge you to include the Hanalei River, which received an Outstanding in all four categories in the Hawai`i Stream Assessment [which Wilcox helped author]. In recent years, it was named an American Heritage River, and is one of the most important and famous rivers in all of Hawai‘i. If the program can’t protect Hanalei, it is probably not meeting the intent of the Water Code.”
What the proposed pristine stream list meant for the rest of Hawai‘i’s streams also worried Earthjustice’s Kapua Sproat and Jim Anthony of the Hawai‘i La‘ieikawai Associa tion. Both let the commissioners know of their objection to the fact that the policy was formulated and streams were selected with out public input. They urged the commission to go back to the drawing board and allow the public to be a part of the process.
Thus was created the Stream Policy Working Group, nicknamed SPAM II.
SPAM II
The SPWG started small. On February 25, the group held its first meeting, which included Anthony, Sproat, Wilcox, the Department of Health’s Dave Penn, Joe Prigge of Kaua‘i, hydrologist Bill Meyer, and CWRM staffers Ernest Lau, Ed Sakoda, Dean Uyeno, David Higa, Charley Ice and Dean Nakano.
The group’s discussion quickly broadened to include water use, water quality, and in terim and permanent instream flow stan dards, in addition to the pristine stream policy.
With regard to the stream policy, Penn compiled a list of candidate “high natural quality” streams, including the 44 Candidate Streams for Protection listed in the Hawai‘i Stream Assessment, all 42 stream segments in the state Natural Area Reserves System, and all stream segments in national and state parks and wildlife refuges, those designated by the DOH as “outstanding national re sources” or that empty into Class AA waters, those used by the DOH as reference streams for the Hawai‘i Bioassessment Protocol (Hanakapiai, Wailau, and Hanawi on Maui), and perennial streams that “CWRM certifies as important for the functioning of local communities dependent on the stream for the protection of those rights traditionally and customarily exercised for cultural, religious and subsistence purposes by Hawai ians.” Altogether, some 231 streams or stream segments – amounting to 61 percent of all Hawai`i’s perennial streams – met Penn’s criteria for listing. Last March, Penn suggested adding streams within the Natural Area Partnership Program and those that flow into Class 1 waters. At the same time, Wilcox proposed guidelines for Heritage and wild and scenic stream programs and for developing standards to set permanent instream flows.
Despite the group’s efforts, it seemed to have a hard time choosing a focus. Minutes from the April 15, 2004, meeting, attended by 19 members of the public plus CWRM staff, indicate that the group was torn between pristine streams and instream flow standards.
According to minutes of that meeting, someone posed the question, “Are policies even needed?” The Water Code, SPAM documents, the public trust doctrine, and the state Supreme Court’s decision on the Waiahole Ditch case already include policies. The commission “just needs to compile them to find pukas [omissions] and inconsistencies,” the minutes state.
A decade earlier, SPAM I had recommended that the commission review existing legal mechanisms that could result in restoring stream flows. “Existing mechanisms include surface water designation, amendments to interim instream flow standards, and es tablishment of permanent instream flow standards. This study should answer the following questions: Are those mechanisms effective? What are the problems and prospects for restoration of flow? Consider legal, biological and economic aspects.”
By last July, the stream policy working group seems to have decided to focus on instream flow standards. Meetings from that month indicate that the group engaged in a brainstorming session to come up with factors to be included in setting instream flow standards. The group held its last meeting in September to discuss a fictional case study, “Waimolo Stream,” that pitted taro farming and natural resource uses against the continued use of an old sugar mill hydropower plant.
While the group was formed to address the commission’s pristine stream policy, “we kind of came around in a circle” and realized that the commission needs to tackle instream flow standards first, says Sakoda.
After October, for no apparent reason, the meetings stopped. But, Sakoda says, that doesn’t mean they won’t meet again. “We’re still not finished getting their input,” he says, adding that the commission staff is trying to incorporate the group’s concerns into policy proposals for establishing instream flow standards.
Dean Nakano, in charge of overseeing updates to the Hawai‘i Water Plan, says that the group’s work will also help CWRM staff prepare those sections on instream flow stan dards that are required in the Water Resource Protection Plan.
‘On Hold For Now’
Since the establishment of the Water Code in 1987, not a single permanent instream flow standard has been established and today, those streams closest to getting one are still being studied.
Wai‘ono Stream, more commonly known as Punalu‘u Stream, on the windward side of O‘ahu is one of those streams that had long been diverted by an auwai system for agriculture – for taro, originally, and later, for rice sugarcane, bananas, and other crops. Today, the auwai, refurbished with rock and mortar in the early 1900s for sugarcane irrigation, is on land mostly owned by Kamehameha Schools. In the early 1990s, the Punalu‘u community had a contentious relationship with the Kamehameha Schools’ tenant Ko‘olau Agriculture, which had reportedly channelized and straightened the stream. Also, farmers downstream wanting to maintain the upper portions of the auwai to assure adequate water flow to their kuleana were denied access by Ko‘olau.
What’s more, says Cathy Mattoon of the Punalu‘u Community Association, Ko‘olau had threatened to place water meters and charge several kuleana land owners for using water from the diversion.
At the same time, proposed well drilling by the Honolulu Department of Water Supply and Kamehameha Schools raised concerns with the Punalu‘u Community Association (PCA) about the effects excessive groundwater withdrawal might have on Wai‘ono Stream. So in January 1994, the PCA filed a petition with CWRM to designate Punalu‘u as a surface water management area. The Water Code states that no one may “make a withdrawal, diversion, impoundment, or consumptive use of water in any designated water management area without first obtaining a permit from the commission.”
Ko‘olau Ag and the Honolulu BWS opposed the petition; Ko‘olau challenged anyone to prove that stream flows were being harmed, and the BWS noted that there was no evidence that current pumping from wells deep beneath the stream were having any effect on flow.
Water Commission deputy director at the time Rae Loui wrote PCA’s Creighton Mattoon to explain what claims the PCA was making for kuleana rights, contractual rights under leases, or other rights.
“Please provide documentation for these claims. It remains to be firmly established which parcels have what particular water rights (if any),” she wrote in February 1995. In a 1996 letter, Loui offered Mattoon suggestions on where he might find such information. Loui’s request for information went unanswered and in the years following, nothing really happened.
In May 2002, PCA wrote a letter to CWRM noting that the August 2001 Supreme Court decision on Waiahole recognized the relationship between ground and surface water and PCA urged CWRM to act on its petition.
“The issue of designation has been held in limbo for too long and a resolution is long overdue,” Creighton Mattoon wrote.
CWRM’s then deputy Linnel Nishioka responded, “As part of our investigation, we requested documentation supporting the petitioners’ rights to water from the Punalu‘u West Ditch. To date we have not received such documentation. We ask that you provide any such information to support your claims in the petition to designate, so we can complete our investigation and continue the designation process by holding a public hearing. We further ask that you submit the information to the commission by May 31, 2002.”
Instead, Mattoon proposed a meeting to discuss how best to proceed. In the summer of 2002, the PCA met with representatives from CWRM, BWS, USGS, and Kamehameha Schools. Discussion went from addressing surface water management to comprehensive planning for the future of Punalu‘u, and eventually, the Punalu‘u Wa tershed Alliance was formed.
When PCA asked CWRM in June 2002 about the status of its petition, Nishioka responded that it was “on hold for now, pending your further discussions with Kamehameha Schools.”
In 2003, the alliance decided that Kamehameha Schools and the BWS would fund a two-year USGS study of the effects of diversion on stream life at different points along Wai‘ono Stream. For fiscal year 2004, the BWS budget included $75,000 for this study. The resulting data will help CWRM establish instream flow standards for Punalu‘u, states the CWRM’s 2005 report to the Legislature. PCA has also submitted a proposal to the BWS for a study of the irrigation system.
“The reason why we got into an alliance was that we were ready to go forward with designation. We invited all the stakeholders to the table. Kamehameha Schools and CWRM preferred negotiation rather than designation,” says Cathy Mattoon.
While the studies are underway, Cathy Mattoon says, the problem PCA has with kuleana landowners’ water being restricted has not gone away. In addition, the Mattoons believed that a diversion on Kamehameha Schools’ property may be dumping water from the ditch into a stream on the other side of Punalu‘u Valley “that used to be less than a trickle” and is now regularly flowing.
Creighton Mattoon says that PCA’s petition has been placed on hold “to work out some of the problems in lieu of proceeding.” But even with the ongoing studies, which will answer some of the questions PCA has about its watershed, others remain: how much water does Kamehameha Schools divert, and does it have a permit from the Public Utilities Commission to sell that water, and are the water rates fair?
As far as the alliance’s work towards developing a watershed study and plan, Cathy Mattoon says, “It is progressing more slowly than we would like.” In the meantime, the families of Punalu‘u do what they can, which so far has been to clear the ditch up to the property line of Kamehameha Schools of mud and debris to free up water for kuleana land.
The community has asked Kamehameha Schools for permission to clear the ditch on its property, but so far has not been granted access.
East Maui
Like the PCA, the Native Hawaiian Legal Corporation has had a petition pending with CWRM for years. In July 2001, NHLC filed to amend the interim instream flow standards of 27 streams in East Maui that for more than a century have been diverted by East Maui Irrigation/Alexander & Baldwin’s ditch system. The petition dovetails with a contested case being heard by the Board of Land and Natural Resources regarding a May 14, 2001 application by EMI/ A&B for a 30-year lease to continue divert ing East Maui water (the companies currently divert water under annual permits, which NHLC has argued is illegal).
NHLC, on behalf of Na Moku Aupuni O Ko‘olau Hui, Marjorie Wallett, Beatrice Kekahuna, and Elizabeth Lapenia, argues that a long-term lease to EMI/A&B would be a breach of the Land Board’s constitutional duty to protect Native Hawaiian rights. The case has been long and winding and has gone from the Land Board to the Circuit Court back to the Land Board. Parties to the contested case had a preliminary hearing last month to narrow the issues to be covered by the contested case.
Contested cases and CWRM petitions can drag on for years without any relief for the clients and petitioners. In the case of NHLC’s clients, some of them are elderly and can’t wait forever. NHLC attorney Moses Haia says some progress has been made: “As a result of our efforts in the DLNR contested case, we have been able to have some amount of water returned to Honopou Stream. We have a couple of clients that are kuleana landowners and there’s been an additional four-inch pipe added to the lower ditch system that allows about 200,000 gallons of water a day to flow into the `auwai” (channels that feed taro patches).
A&B agreed to allow NHLC’s clients to pipe some of the ditch water “without waiving anyone’s rights about whether it was a sufficient amount.” And what was allowed is not sufficient for taro cultivation, Haia says. As for the rest of his clients, Wailua Nui residents and the 500 or so members of Na Moku A&B has only cleared brush and hau from streams, he adds.
“Whatever has been done has not resulted in a noticeable or appreciable change in stream flow. Our clients are still being adversely affected,” Haia says.
With regard to NHLC’s petition with the Water Commission, Haia says that the commission sent a letter saying that the petition was on hold pending the outcome of a four-year USGS study, which includes data collection and modeling of East Maui streams. To NHLC, this was unacceptable.
“The commission was trying to make us come up with all the evidence… [But] they can’t just act as an umpire in this case. They’re the trustee,” Haia says. Although Haia says the commission now realizes it can’t always burden communities with the responsibility to gather all the evidence themselves, Sakoda of the commission still considers the petition on hold while the studies are conducted.
Haia has a problem with that. “The Water Commission burdens the community” with the obligation to provide information and undertake studies, he says, “but they bend over backwards for corporations to make sure they don’t adversely affect their financial interests.”
The Four Great Waters
On June 25, 2004, Earthjustice, on behalf of Hui O Na Wai `Eha and Maui Tomorrow Foundation, Inc., filed a petition to amend interim instream flow standards for West Maui’s Waihe‘e, North and South Waiehu, ‘Iao and Waikapu streams.
According to the state Agricultural Water Use and Development Plan, an average of 45 million gallons of water a day are diverted from these streams, known collectively as Na Wai `Eha (the four great waters of Maui) via the West Maui Waihe‘e and Spreckels ditches owned and operated by Wailuku Sugar Com pany (now Wailuku Agribusiness) and Ha waiian Commercial and Sugar Co. (an A&B subsidiary). As was the case with the Waiahole Ditch on O‘ahu and the Lalakea Ditch on Hawai‘i, the end of Wailuku Ag’s sugar production in 1988 has opened the door to stream restoration, which is what Hui O Na Wai `Eha and Maui Tomorrow are seeking with their petition.
“The current [interim instream flow standards] governing these streams … do little more than maintain the status quo and wholly fail to protect native stream life, fish and wildlife habitats, traditional and customary Native Hawaiian practices, outdoor recre ational activities, aesthetic and scenic values, and other beneficial instream uses, in complete disregard of the mandates of our state Water Code,” the petition states.
As with NHLC’s petition, Earthjustice states that the current flow levels are too low to support “desired levels of downstream irrigation, including kalo [taro] cultivation,” adding that the valleys from Waihe‘e to Waikapu once made up “the largest continu ous area of wetland kalo cultivation in all of the Hawaiian Islands.”
Studies have already found that the upper diversion on ‘Iao Stream reduces the stream flow by 92 to 97 percent and reduces the width and depth of the stream channel. Whether the Water Commission, given this level of already existing information, will act on this petition more quickly than it has in the past remains to be seen. To date, the commission is still in the process of receiving and responding to comments on the petition.
“We’ve sent letters to interested persons and we’re looking at comments that have been sent in. We’re going to start to get together with individual parties first,” Sakoda says.
Although the petition does cite scientific studies on diversion’s effects on stream life, Sakoda says that aside from some long-term stream gaging information, the commission has “no specific studies of the same magnitude of USGS’s work on East Maui streams.”
Such large-scale studies may not be re quired to resolve the Na Wai `Eha petition. “It would be nice but it’s expensive,” Sakoda says, adding: “It depends on what the parties agree to as adequate. There’s a lot of things that go into what happens.”
–Teresa Dawson
Volume 15, Number February 2005
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