Waipi`o Community Seeks to End Kamehameha Schools' Waste of Water

Now that sugar is dead, the the Big Island’s Waipi`o Valley community wants water diverted by the sugar industry more than a decade ago returned to their streams, which serve as habitat for the endemic `o`opu (fish), `opae (shrimp), and hihiwai (snail), and as a water source taro cultivation.

After two unanswered complaints filed with the state water commission against Kamehameha Schools (KS), the Waipi`o community is seeking a formal declaratory order requiring KS to immediately cease diverting water by its Lalakea Ditch System, and comply with the State Water Code before diverting any water in the future. On June 6, the Waipi`o Valley Community Association filed a petition with the Commission on Water Resource Management seeking an end to the diversion by the Lalakea Ditch, located between the lower and upper Hamakua ditches. The petition comes more than four years after Waipi`o taro farmer Christopher Rathbun first filed a complaint against KS’ misuse of water, and two years after the WVCA filed a similar one, and action on the latter is still pending.

In 1989, when a cliff collapse broke one of Hamakua Sugar Company’s main irrigation ditches, the company redirected three streams to keep water flowing through its system. The diversions Hi`ilawe, Hakalaoa, and Lalakea streams were made near the Lalakea Ditch System, sweeping away 1 to 2.5 million gallons of water per day that once flowed through Waipi`o Valley.

“Unlike stream flows that are diverted for aquaculture and agriculture in Waipi`o Valley, water diverted by the Lalakea Ditch System is not returned to the streams of origin, but is dumped into Wai`ulili Stream, located below the Lalakea Reservoir,” the petition filed by Earthjustice Legal Defense Fund on behalf of the Waip`io Valley Community Association states.

“The diversions by the Lalakea Ditch System directly and immediately affect existing and legal instream uses in Waipi`o Valley by limiting the availability of water to support taro cultivation, restoring native stream life, and protect the traditional, customary, aesthetic, and recreational values of these streams. In addition, the Lalakea Ditch diversions limit the production potential for wetland taro and aquaculture in Waipi`o Valley,” it continues.

Since 1998, Kamehameha Schools has insisted that their lessees need the Lalakea water to grow taro and raise fish, yet, it has provided no data on current or future water use, nor has it submitted any monthly diversion and water use reports as is required by the state water code.

On September 30,1998 and on March 4, 1999, Water Commission staff visited the Kamehameha Schools site about found little evidence of a thriving operation: only one of the three intakes, a structure floating in the reservoir meant for aquaculture, three inactive and apparently abandoned taro lo`i, and “a pipeline system from Lalakea Reservoir to the taro lo`i down gradient,” the petition states. In addition, staff noted that excess water from the reservoir was over flowing into Wai`ulili Stream.

On October 19, 1999, Manabu Tagomori of Kamehameha Schools wrote the Water Commission that KS has expanded the operation and “these operations utilize all of the diverted flows.” A month later, a Water Commission staff visit found 23 earthen aquaculture ponds under construction. Staff noted that water was flowing into the ponds without any outflow system in place, which raised concerns regarding water turbidity and quality of outflow water. Staff also noted that excess water was still flowing into Wai`ulili Stream.

Since the Water Commission staff’s visit last November, “there was no evidence in the Commission’s file of any further communication between KS and the Commission on the Lalakea Ditch Complaint,” the petition states. The commission may respond to complaints however thoroughly they please, says Earthjustice attorney Paul Achitoff. However, if the commission fails to act on the petition for a declaratory order, Achitoff says, the matter may have to be settled in court.

Once again, the state Department of Agriculture will not restore the Big Island’s twin waterfalls — Hakalaoa and Hi`ilawe — before the deadline set by the state Water Commission. Whether or not the commission will impose fines for failing to restore the falls will be decided at the commission’s August meeting in Honoka`a.

In the spring of 1989, the cliff at Hakalaoa Falls collapsed, exposing nearly 30 feet of the Lower Hamakua Ditch Tunnel below the falls. Without permits, the Hamakua Sugar Company, which owned the ditch, repaired it with a temporary flume. To protect its repairs from damage, Hamakua Sugar also diverted the Hi`ilawe stream.

“Water which formerly cascaded over Hakalaoa Falls was diverted via the trench, and now flows over Hi`ilawe Falls as a single waterfall. The water was diverted to allow construction of the flume that was built to repair the damaged section of the Lower Hamakua Ditch. Upon completion of the flume, the diversion was left in place to decrease the potential of direct blows to the flume from boulders which might fall from the top of Hakalaoa Falls should it be restored,” a report by Legal Aid Society of Hawai`i (LASH) states. LASH represents taro farmer and head of the Waipi`o Valley Community Association Christopher Rathbun who has sought to restore the falls since 1992.

At the Water Commission’s April 17, 2000 meeting, Paul Matsuo of the state Department of Agriculture’s Agricultural Resource Management Division briefed the commission on the restoration’s status. For years, Matsuo has headed the state’s effort to remove an illegal diversion of the falls.

The falls would not be returned by August 1 as the commission decided last year, he said. In fact, they could not be restored until February 1, 2001, because the DOA was still gathering contracts for services.

A report by Board of Agriculture chair James Nakatani included a schedule of events, which suggested that the state would award a construction contract on July 21. The contractor is expected to provide a temporary stream bypass by August 30, and should complete tunneling work by February 1, 2001.

It is unlikely that the DOA can keep to this schedule, given its history with regards to the restoration. On July 17, 1998, the Water Commission set a deadline of December 1, 1999 for the removal of the illegal stream diversion. But it became clear to the DOA, as December 1 neared, that it would not complete the project in time. So at the Water Commission’s October 13, 1999 meeting, it requested an extension — a request not well received by Rathbun.

“Waipi`o residents were pleased that after nine years of being told that the falls would be restored in ‘six months,’ the Commission actually set a deadline for the restoration of Hakalaoa falls – December 1, 1999. But now your staff recommends that you delay the restoration for another ‘six months.’

“Why? Because the DOA has requested another delay. They claim that significant progress has been made that justifies this extension. What is this progress? They have signed a lease the Commission established as the first milestone to be met by November 1, 1997? A lease that they were ordered to produce by June 1, 1998, when they could not meet the first deadline?” Rathbun wrote in October 1999 testimony to the commission….

“What will prevent the Department of Agriculture from asking for yet another in this endless series of delays in eight months? The parties involved were warned by the Commission last year in the strongest terms that they must meet the December 1 deadline. If they are unable to repair the tunnel by that date, and are unwilling to interrupt the flow of the ditch while they take their own time implementing a solution, then the Commission should assess maximum fines each day to provide the financial incentive that seems to be needed to start this project,” Rathbun concluded.

At the October 1999 meeting, the Water Commission agreed to set a new deadline of August 1, 2000, but stipulated that if the illegal diversion was not removed, “maximum fines will be assessed for failure to remove the diversion after the August 1, 2000 deadline,” the meeting minutes state. Those fines could apply to both the DOA and Kamehameha Schools, which owns the land under in which the falls rest.

With the announcement this April that the August 1 deadline would not be met, Commission Chairman Timothy Johns asked Matsuo, “What do you think the commission should do when you miss the deadline?”

Matsuo responded that the delay resulted from things “outside our control.” And suggested that the monthly progress reports they had been submitting to the Commission since October might help keep the project on track.

The Department of Agriculture will provide an update for the Commission this month and will probably request a deadline extension at the August Water Commission meeting to be held in Honoka`a, says Roy Hardy of the commission staff.

“I think if we teach kids to take care of the earth, and the institution [teaching them] is doing the opposite, the students are going to be confused,” Waiahole taro farmer Calvin Hoe told the Water Commission at its May 31 meeting. That day, the commission met to rule on a petition filed by five parties – including Ho’s Hakipu`u Ohana — to deny Kamehameha Schools (KS) a permit to use 4.2 million gallons per day of water from the Waiahole Ditch that KS owns. The petitioners include the Waiahole-Waikane Community Association, Hakipu`u Ohana, Kahalu`u Neighborhood Board, and Ka Lahui Hawai`i. KS, they argued, had not thoroughly investigated alternative sources of water, as was required by a conclusion of law reached during a contested case hearing over Waiahole Ditch water in 1997.
At the request of KS and with support from the contesting parties, the Commission voted to defer action on the petition for four months, allowing both sides to work together toward a solution.

KS Director of Land Asset Division Neil Hannahs told the commission that KS was revising its mission and values after working with the Kamehameha Schools “family” on issues such as stewardship and financial development. After consulting with its constituency, KS decided it would be best to defer the petition to deny its water permit for four months so that KS and other involved parties could work toward a “culturally appropriate development,” Hannahs said.

Earthjustice Legal Defense Fund attorney Kapua Sproat, who represents the petitioners, told the commission that her clients supported the deferral. Calvin’s son Kala Hoe added testimony thanking Hannahs for committing to working together with the petitioners to “make lasting decisions.

“Save a few individuals, none of us want a contested case,” he said. Hoe, whose family has attended and taught at Kamehameha Schools, was on the stewardship committee the “strategic planning process” KS has conducted to re-evaluate itself.

The Commission also supported the deferral, provided that the parties involved submitted monthly status reports and included other interests, such as water recycling company U.S. Filter and others concerned with water issues, in their discussion. Kala Hoe suggested that the Commission should also “be at the table as well.”

— Teresa Dawson

Volume 11, Number 1 July 2000