Forty-one months have passed since the Commission on Water Resource Management voted to designate the ground and surface water of West Maui as water management areas.
Thirty-nine months have passed since the date the designation became effective.
Twenty-seven months ago, applications had to be submitted by anyone who wanted to receive a permit to continue drawing water from streams or wells in the area.
Yet on November 18, CWRM staff admitted that none of the applications was complete.
In fact, Commission Deputy Director Ciara Kahahane stated that the staff’s presentation that day was prompted by questions just last April from the Lahaina community and from commissioner Hannah Springer, all of whom wanted some accounting of where water was going, what it was being used for, and how much was available.
“This is something we’ve been working on since April,” Kahahane seemed to boast.
Did it really occur to her only last April that this kind of analysis might be needed before the commission could possibly make decisions on the 93 existing use applications they had received more than two years ago?
She continued. What she and her staff were presenting was, she said, “a first look at the applications.”
“While I don’t think that this is as comprehensive as what was requested or desired,” Kahahane said, “I assure you we did do our best.” It’s not “gospel truth,” she added, but it is what was provided by the water companies themselves.
Ayron Strauch, whose remit is instream use protection, was tasked with analyzing the data in the applications. He attempted to explain why it was taking so long to process permit applications. No applications were complete, he said. Applicants presented information in different formats. Some of the more than 4,000 discrete parcels that were included in these applications had multiple meters, while others had none.
Additionally, “we have a very small team processing permits,” he said. They had attempted to ground-truth the end water uses by looking at Maui County’s description of the lots receiving the water – whether they were used for commercial, agricultural, multi-family, or single-family residential purposes.
The summary information that Strauch presented last month reflects those efforts, but it doesn’t begin to provide the sort of reliable information required for the commission to act on the applications. And this isn’t because those efforts were misguided or flawed.
Rather, the problem at heart is one of garbage-in, garbage-out. The applications that were submitted for existing use by the large water service providers – the only ones for which any analysis has been published – have obvious and fundamental flaws. In some cases, such as that of the reported water use in just one Kapalua subdivision reviewed elsewhere in this issue, the “existing” water use seems instead to be an effort to bank water for future uses.
Complicating the problem is the conversion of what were once large tracts of agricultural land into exclusive, nominally agricultural subdivisions up and down the coast of West Maui. These lots, which the privately owned water service providers describe as agricultural, are for all intents and purposes residential. They are marketed that way. They are taxed that way. They are developed that way.
The analysis by CWRM, however, classifies these lots as residential, using its own classification system based on the apparent lack of agricultural activity. If the intention is to put these developments into the category of domestic use rather than agricultural, that is problematic. Should the large non-owner-occupied homes of the wealthy be given the same water use rights as, say, affordable housing units? When these luxury homes use water at a rate that is many times more than the average demand of smaller units, should their profligate consumption be blessed by acceding to the stated water use rates claimed in the applications submitted by private water purveyors?
Until the applications are deemed complete, the commission cannot act to approve or disapprove them. This is yet another reason for the delay in processing permits – yet it is not at all clear what is required to fix the applications, what is required to make them complete.
A strong hand at the helm of the commission is needed to address these problems. When Ciara Kahahane took over as CWRM administrator, she had no prior experience with administration of the Water Code. And while the West Maui issues are critical, they are by no means the only controversy that she must address. While not suggesting that Kahahane is in over her head, one could argue that dropping an inexperienced attorney into such a position, at such a time, was maybe not a wise move.
But as it turns out, Kahahane does not appear to have final say in the day-to-day management of commission affairs. As documents disclosed by Earthjustice reveal, Kahahane’s efforts to curtail the use of potable water by the two Kapalua golf courses were overruled by CWRM chair Dawn Chang. In a memo to the governor on August 18, Kahahane stated that since wells were not being used to irrigate the golf courses in August 2022, when the groundwater management designation took effect, they could not be used now for this purpose, adding that only “existing uses at the time of designation can continue.” In any case, she added, “[g]roundwater should not be used to irrigate golf courses, especially during a long and severe West Maui water shortage.”
Just four days later, Chang informed Maui Land and Pineapple that “prior to designation, groundwater was used as a substitute source for irrigation purposes” and for that reason, “temporary use of groundwater as a substitute for surface water during low flow periods is allowed for irrigation uses, including at the Bay and Plantation golf courses.”
This action, Earthjustice notes, went well beyond Chang’s authority. “By law,” attorney Dru Hara wrote in his letter to Chang of November 17, “any water use permit … must be issued by the commission, not its chair.” Earthjustice asked Chang to “immediately rescind her prior communications and clarify that use of groundwater for irrigation” of the golf courses must immediately cease. She has ignored this.
But Chang’s leadership failings go well beyond the undercutting of Kahahane.
Certainly one of the reasons that the Water Commission has been unable to move further along the path of processing permits is the ongoing personnel deficit. The Legislature has authorized the commission to hire a total of 33 full-time staff. For at least two years, no more than 19 staff have been employed by the commission at any given time – excluding Kahahane. According to CWRM staff, among the 14 vacancies are seven in the groundwater branch, five in the stream protection branch, and two in the planning branch.
The Department of Land and Natural Resources’ communications office forwarded to Environment Hawaiʻi a statement attributed to CWRM staff: “All three branches are working with DLNR’s personnel office to get these positions into recruitment. CWRM is pursuing a legislative fix to allow it to hire employees who are exempt from civil service into key positions, particularly hydrologist positions. All hydrologists currently employed by CWRM are exempt but due to changes in the law, CWRM is not allowed to establish or recruit new hydrologist positions.”
While hydrologists have a critical role to play in the analysis of groundwater quantity and quality, it is not clear that their skill set would translate into the kind of analysis needed to determine the accuracy and completeness of the water use applications.
Given the years-long staff shortages, it is only reasonable to question Chang why this has been allowed to continue. This is absolutely a hair-on-fire emergency, and she should bring whatever influence she seems to have with Governor Green to move mountains to get this done. Blaming other agencies – DLNR’s personnel office, the Department of Human Development, the Legislature – for this is no longer credible.
Huge quantities of precious water from both streams and groundwater sources are going to what amounts to decorative landscaping. There is no effort to force homeowners into alternative types of plantings that would require less water. No water service has proposed conservation measures that would impose curtailments in the event of wasteful water uses. In fact, the privately owned water purveyors appear to assume that whatever numbers they plug into their “existing use” applications will be approved without question.
As the aquifers grow salty and the streams dry up, it is unacceptable that water consumption at the levels and for the purposes that now exist should be allowed to continue. To do so forecloses the possibility that water will ever be available for worker housing or Hawaiian Homes developments, to say nothing of support for traditional and customary uses.
It is well past time to move forward on the permit applications. CWRM must get whatever staff it needs to work with water providers to bring the applications to the point they can be processed and voted on. Water users, whether at the utility level or that of the individual consumer, must know that the current situation is not sustainable. And, maybe most of all, Dawn Chang needs to start taking West Maui water issues seriously.
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