It will be at least another six months, and probably much longer than that, before the twin falls at the back of Waipi`o Valley are both running. The state Commission on Water Resource Management has voted to give Bishop Estate and the state Department of Agriculture until June 1, 1998, to work out a plan to restore the falls without destroying that part of the Hamakua Ditch that now lies within the path of Hakala`oa Falls.
Since 1989, the water flowing naturally to Hakala`oa Falls has been shunted into a reservoir above Waipi`o Valley. The diversion, made without permits, was undertaken by the now-defunct Hamakua Sugar Company so it could repair the Lower Hamakua Ditch. A portion of the cliff wall collapsed, leaving exposed a section of the ditch. A wooden aqueduct was built as a temporary measure, spanning the length of the collapse and carrying water from one side of the tunnel breach to the other. If Hakala`oa Falls were to be restored, it is feared by many that the aqueduct would collapse and the entire Lower Hamakua Ditch would be out of service.
In 1992, the Water Commission received a complaint from a Waipi`o taro farmer, Chris Rathbun, about the diversion. Since then, the Water Commission has been holding periodic meetings to discuss possible resolution of the matter.
The most recent meeting occurred on November 19, when the commission considered the recommendation of its staff to extend the time period for developing a restoration plan from the previous deadline of November 1, 1997, to June 1, 1998. At the same time, the commission considered the staff’s report on progress that Bishop Estate, successor in ownership to Hamakua Sugar, and the state Department of Agriculture, which wants to see the ditch continue to operate, had made toward three milestones that the commission had established on May 5, 1997.
Milestones
Those milestones were, first, that there be a written agreement between the state Department of Agriculture and Bishop Estate “securing the land rights necessary for the construction of the Lower Hamakua Ditch Watershed Project,” and that this agreement be submitted to the commission. (The Lower Hamakua Ditch Watershed Project is a $10 million state and federal proposal to restore the ditch, with U.S. Department of Agriculture funds providing the bulk of the planning and construction money.)
Second, a “final schedule and financing plan” for the watershed project was to be submitted to the commission.
And third, the commission was to be given evidence that the many private parties across whose land the ditch runs had been identified and that the state Department of Agriculture was assured it could acquire land rights to all affected parcels.
The staff could report limited progress toward the first one. While no written agreement yet existed, the report said, “both KSBE and the DOA believe that an agreement in concept has been reached, but it will take through the end of 1997 to finalize the written agreement.”
On the subject of milestone two, the financing plan, the staff reported that the USDA’s Natural Resource Conservation Service (formerly the Soil Conservation Service), had informed staff that “funding for the Lower Hamakua Ditch Watershed Project is likely within a five-year timeframe.” State funds were not secure either: “It is unknown at this time whether the DOA will be successful in the 1998 legislative session for the state’s portion of the funding,” the staff wrote.
On the third milestone, the staff noted that the DOA had approached the various property owners “and has submitted a plan to either acquire or condemn the property rights.”
A Petition to Restore
On October 23, the Water Commission received a petition to amend the interim instream flow standard for streams into Waipi`o Valley. The petition, filed on behalf of the Waipi`o Valley Community Association, seeks to have stream flows restored in an amount sufficient to “support beneficial instream uses and appurtenant and riparian water rights in Waipi`o Valley,” to recover water that is taken from the streams and currently being dumped, and to eliminate water waste resulting from the disrepair of the Lower Hamakua Ditch. (Because the ditch is in poor repair, a large portion of the water collected from the streams is lost. And, according to the figures supplied in 1995 by the state Department of Agriculture, approximately 2 million gallons a day of the 30 mgd average flow in the ditch are actually used for irrigation purposes.)
Under state law, once a petition is accepted as complete, the commission has 180 days to reach a decision.
Rae Loui, chief of staff for the Water Commission, noted the Lower Hamakua Ditch Watershed Project would also restore at least part of the now-diverted flows and would also require the filing of an interim instream flow standard petition.
“The recommended plan would actually divert on an average annual basis 7.4 mgd [million gallons a day] and the remaining 22.6 mgd would flow back into Waipi`o Valley,” Loui told the commissioners. “So there is some duplication in the proposals” of the DOA-NRCS and the Waipi`o Valley petitioners, she said. Ideally, Loui suggested, the two proposals would be considered simultaneously. “To expedite that process,” Loui said, “we are recommending that the commission request DOA to submit their petition as soon as possible.”
Loui told the commissioners that the existing petition for stream restoration was incomplete. But in later testimony, Paul Achitoff, attorney for the defense fund, suggested that the level of detail now being sought by commission staff from his clients might be a means of delaying action on the petition.
“If they [the DOA] ever get around to submitting such a petition, I would expect the commission will want the same level of detail from DOA’s petition that they want from us,” Achitoff said. “So it could be a good while before we see an acceptable petition from the Department of Agriculture, if we ever do. It doesn’t seem appropriate that my client’s petition to amend the interim instream flow standard should be held hostage to the Department of Agriculture’s willingness to submit its own petition, which it hasn’t yet seen fit to do.”
Achitoff suggested that the commission impose a deadline on the DOA for submitting its petition, and “if they don’t submit a complete and acceptable petition by that deadline, that’s it. We move ahead on ours…. The entire watershed project at this point is highly speculative. We could be waiting years before we’re able to confirm what the Department of Agriculture is actually in a position to do with regard to restoring the Lower Hamakua Ditch.”
“Separate from those issues,” Achitoff continued, “there is a considerable amount of water — tens of millions of gallons a day on average — being wasted in the Lower Hamakua Ditch… Whether our petition is complete or it’s not complete, there doesn’t seem to be any excuse for allowing the continued diversion of water into the ditch that is not being used and there’s no prospect of it being used anytime at least for several years, even assuming that the Lower Hamakua Ditch is restored and all these plans for diversified agriculture happen — that’s going to be years away.
“So, if there are a couple of mgd that are needed today to support ongoing operations, we’re not arguing with that. But why divert 30 mgd so you can supply 2 mgd and waste all the rest?”
Hamakua Ditch Update
During the course of testimony from parties representing Bishop Estate and the USDA’s Natural Resource Conservation Service, the Water Commission was informed of a number of developments with respect to progress — or lack of it — on the state’s proposed restoration of the Lower Hamakua Ditch.
Mike Kolman, assistant state conservationist with the NRCS, said that it might be five more years before federal funds were available for the project. “It is a high priority for us to complete the plan” for the project, he said. However, he added, little work had been done since then for several reasons, including the need for an agreement between the state Department of Agriculture and Bishop Estate on land use.
Paul Matsuo of the state Department of Agriculture’s Agricultural Resource Management Division indicated the administration had placed in its proposed budget a request for $2 million, approximately $1.2 million of which would be used to repair the temporary flume by tunneling behind it and to restore the falls.
CWRM Action
In the end, the Water Commission approved the recommendation of its staff. The Department of Agriculture and Bishop Estate were given until June 1, 1998, to come up with a signed agreement on land rights necessary for restoration of the Lower Hamakua Ditch and to present “evidence of approval by the State Legislature for the state’s portion of the funding for the Lower Hamakua Ditch Watershed Project.”
As before, the commission deferred any action on fines. Finally, the commission requested the Department of Agriculture to submit “the necessary permit applications to the commission as soon as possible,” referring to the permits (including, apparently, a petition to amend the interim instream flow standards for streams diverted by the Lower Hamakua Ditch) that will be needed to undertake the Lower Hamakua Ditch restoration project. But appearing to reject the suggestion of Achitoff, the commission placed no deadline on the Department of Agriculture for submitting those applications.
Volume 8, Number 7 January 1998