On October 5, dozens of tenants within the Moloaʻa Hui agricultural subdivision on Kauaʻi — including residents, farms, and businesses — will be cut off from the well water that they’ve relied on for years.
Some of those tenants testified to the state Board of Land and Natural Resources at its meeting on August 23 that losing the water before their impending backup well is online would be devastating.
“If we lose our water on October 5, it’s going to be one of the worst scenarios that anyone in this state has probably seen, as far as I’m concerned,” Louisa Wooton told the board. Wooton is the general manager of the Moloaʻa Irrigation Cooperative, which distributes well water purchased from a neighboring landowner, Jeffrey Lindner.
In written testimony, the cooperative’s members reported, “At present, the water that we purchase from Mr. Lindner is our sole source of water. (MIC) distributes this water to 70 metered connections which serve between 250–300 people on a daily basis. We rely on the use of the water for domestic purposes, business needs, and irrigation on 45 commercial farms in the system.”
Megan Fox, director of the non-profit Malama Kauaʻi, also submitted written testimony speaking to the potentially disastrous effects premature water cessation would have.
“Our non-profit operates our island’s food hub from a facility on the Moloa’a Irrigation Cooperative’s land that was just recently built and opened in February of this year. This facility cost over $3M, over $500k of which was funded by the State. We distribute for over 100 local farmers and food producers across our island and the state, host two facility food business users, and employ over 5 staff at the facility.
“Interruption of water would be immediately halting businesses and jobs with all of these entities, creating a disastrous economic hardship for many in our food system who rely on our work to make sales or have access to healthy local food. We serve hundreds of customers every week who rely on the food access we provide, including with programs such as WIC, SNAP and DA BUX,” Fox wrote.
The coop members stated that while it was scheduled to have final pump tests toward the end of August, they were not confident that they could bring the well online by Lindner’s October deadline.
For years, Lindner has sought a long-term water lease for the state well, which he has operated under a revocable permit since 1997. Although the permit was for agricultural water only, the state Department of Health determined in 2015 that the well needed to provide potable water to the subdivision, as it had grown to include dozens of residents.
On August 5, he informed the Department of Land and Natural Resources that he wanted to cancel his permit. He could not justify making large capital improvements to maintain the system without a long-term lease, and also worried about his liability exposure as a potable water purveyor, according to his email to DLNR director and Land Board chair Dawn Chang, and Kauaʻi land agent Alison Neustein.
“I cannot in good conscience continue to operate a system that is in grave need of very expensive maintenance, and more important, exposes the community to very real health hazards. DOH recently inspected the water system and pointed out how essential the back flow preventer was in order to protect the potable water from any contamination flowing back from outside sources. I pointed out to them there are many leaks in the main pipeline. … The exposure to me and my estate far outweighs any benefit derived as I am not able to prevent contamination of water that may be consumed and I am not willing to deplete my assets, which likely exceed $1.5 million for the necessary maintenance and repair, with no more than a 30-day contract for these RPs,” he wrote.
In the email, he tried to relinquish his RP rights that day and have 30 days notice to discontinue water distribution, but later decided to end water service on October 5, and then to let the permit expire on its own at the end of the year, which would give him time to cap the well, remove improvements and conduct the environmental site assessment that the permit requires upon termination.
The coop members asked that the well not be decommissioned before the end of the year, to allow time for the new well to start providing water.
“MIC has relied on this water source for 13 years since the coop was formed in 2011. Many of our present members relied on the water even before Mr. Lindner assumed the permit from AMFAC in 1996. MIC has paid Mr. Lindner $1,614,946.21 for water from August 2011 through our last billing for July 2024. We have also paid for a number of repairs to his delivery lines through the years. We furnished supplies from our own O&M inventory when emergency repairs were needed in order for him to continue service to us. We do not have records for costs for the water purchased from 1996-2010 when Mr. Lindner sold the water to MHL, Inc. and distributed to the farmers, but it should be a substantial amount.
“We hope that the there can be a more humane and sensible alternative to this timeline than to create a situation that compromises the health and livelihood for so many of Kaua’i residents,” they wrote.
While recognizing the potential impacts of Lindner stopping his operation of the well before the new source comes online, Land Division agent Ian Hirokawa told the board, “We can’t force him to keep a permit.”
Attorney Nicole Lam, representing Lindner, told the board that while the Kauaʻi Department of Water Supply expressed interest early on in taking over the well from Lindner, the agency never followed through with the necessary feasibility studies.
Chang asked her whether Lindner would provide the DWS with access through his property to the well now, noting that she had spoken with the county and the agency was still interested in operating the well.
Lindner later responded that he would not.
“From Day One, it wasn’t reasonable that I would give them access because I would have to pay the facilities reserve charge [that the county charges for new water development]. It would cost me a million or two dollars based on the density that I had. That is still the case. And so, no, I am not prepared to do that,” he said.
Board member Vernon Char asked Hirokawa why the state could not offer Lindner a long-term lease for the well.
Hirokawa replied that certain requirements need to be met first, including compliance with the state’s environmental review law, a reservation for the Department of Hawaiian Home Lands, and a watershed plan. He said that he understood at one point that Lindner was going to start fulfilling those requirements, but then later changed his mind.
In addition to seeking a long-term lease for the well on state land, Lindner, through his company Moloaʻa Farms, LLC, has been trying to secure water from the MIC’s portion of the water system, which includes a tank fed by his well and will eventually include the new well.
For years, Lindner has been trying to subdivide and develop his own land, which was once part of the parcel served by MIC. He has argued that an agreement signed when he purchased the property, as well as the subdivision’s declaration, requires the owners to provide water to his property. The owners disagree.
About a week before the Land Board meeting, the Intermediate Court of Appeals issued a ruling supporting Lindner’s argument that the parties were required to resolve the water access issue through mediation.
At the board meeting, MIC vice president Ray Maki, who is also part of the association of owners being sued by Lindner, requested a contested case hearing if Lindner was not going to keep operating his well through the end of the year.
Lindner, however, seemed comfortable leaving it to the county water department to use its trucks to bring water to irrigation tanks that serve the area.
“They’re delivering water to their tank, which they have the ability to do,” he said, before asking, “Why didn’t the subdivision have potable water to begin with? Why did the county waive particular things?”
He said he was not willing to extend water service until the end of the year.
“I am taking the position the department of water is responsible for that water. And the department of water is able to do that and I am not going to accept the liability, the responsibility of contaminating somebody. That system is severely contaminated,” he said.
He added that he has been serving the Moloaʻa farmers for 27 years. “They have not extended that water system with the tank. They have not fed me water for 27 years, so it’s very one-sided.”
Chair Chang pointed out that his permit does require him to provide water to the county, at least. Lindner said that he was doing that, but the pipeline serving the department, which runs through his property, leaked and the county is not allowed to fix it or pay him to fix it. As a result, he said, “They’ve been hauling water for five months.”
“There is no water agreement. I told them I’m prepared to enter into a water agreement. They chose not to do that,” he said.
With regard to the MIC’s request for a contested case hearing, board member Char pointed out that it doesn’t really achieve anything given that a hearing would not likely occur anytime soon and the permit will expire on December 31.
Whether the parties will come to some kind of agreement to keep water flowing remains to be seen.
— Teresa Dawson
Leave a Reply