“They are going gangbusters already, trying to open up all historic lo`i,” Alan Murakami says of his clients, member of Na Moku Aupuni o Ko`olau Hui, who will soon be receiving a release of some six million gallons of water a day (mgd) from the massive ditch system operated by East Maui Irrigation, Inc., a subsidiary of Alexander & Baldwin.
For the first time since the Kingdon of Hawai`i and later governments allowed sugar companies to divert hundreds of millions of gallons of water a day from the East Maui watersheds of Hullo, Honomanu, Ke`anae, and Nahiku, the state has ordered the release of water back into a stream for the purpose of protecting traditional and customary practices of native Hawaiians and for growing taro. Granted, it’s only one stream out of the dozens that are diverted, but to many, it’s a start.
Murakami is an attorney with the Native Hawaiian Legal Corporation who has been fighting for the release of water into East Maui streams for several years. He views the March 23 decision of the state Board of Land and Natural Resources to release 6 mgd into Waiokamilo stream as historic, despite the fact that the board chose not to release any more water into Honopou stream for kupuna taro farmer Beatrice Kekahuna and denied Maui Tomorrow’s requests for releases to farmers Ernie Shupp and Neola Caveny.
In its decision, the Land Board committed to determining the status of pending NHLC petitions before the Commission on Water Resource Management for amendments to the interim insert flow standards of 27 East Maui streams. If necessary, the board will file its own petition and assist CWRM with those recommendations. The board also ordered A&B and EMI to immediately establish monthly inspections of all diversions to ensure bypasses are clear of debris and are in good working order. They were also instructed to establish a bypass repair program.
In what might be the most significant aspect of the decision, the board ordered the appointment of a monitor to ensure compliance with the board’s order, verify the accuracy of the board’s findings, deal with complaints, and make recommendations regarding future releases of flow to make sure the lo`i has sufficient water to control pithier rot, which can occur if the flow is too low to keep the water below 85 degrees Fahrenheit. The board also ordered the Department of Land and Natural Resources to immediately establish a program to monitor stream flows above and below each diversion.
“[W]e hope [the monitor] will see the shortfalls caused by the diversion mauna by EMI,” Murakami says.
Shocking Nonchalance
For more than a century, the EMI system has been diverting most of the water from East Maui to Central Maui. On average, the EMI system diverts 164 mgd, but it has the capacity to divert more than 400 mgd. Most of that water, 138 to 268 mgd, goes to Hawaiian Commercial & Sugar (HC&S), another A&B subsidiary. HC&S also uses abetween 3 and 8 mgd in its factory. About 8.2 mgd goes to the County of Maui to supply a few thousand Upcountry and Nahiku residents with water; about 4 mgd irrigates Maui Land and Pineapple’s fields.
Originally, the diversions were covered by long-term licenses. When those expired in the 1980s, EMI and A&B began diverting the water under revocable permits, which had to be renewed every year (a practices, some say, that violates state law). Wanting a more secure arrangement, EMI & A&B asked the Land Board for a long-term lease for the water in 2001, but were met with petitions for a contested case from the environmental group Maui Tomorrow and from native Hawaiian taro farmers in East Maui represented by NHLC.
Since then, the matter has moved to circuit court, then to negotiations, and back to contested case hearings. Recognizing that the dispute over how much water should be returned to East Maui streams will take years to resolve, contested case hearing officer E. John McConnell held a separate hearing to determine what immediate relief taro farmers might need (Kekahuna is nearly 70 years old). The Land Board heard final arguments for interim relief last September, and released its decision on March 23.
“In theory, we still have to go further to evidentiary hearings for A&B/EMI to establish why it should be allowed to divert. However, although the BLNR accepted the legal burden on the diverter and itself as the agency allowing the diversion, it is unclear how soon all of this will happen, since the interim order provides for the appointment of a monitor with broad powers to monitor the field conditions and even recommend changes to the BLNR’s findings where they are erroneous,” Murakami says.
Steve Holaday, general manager of HC&S and chairman of the board of EMI, also supported the Land Board’s decision. In an email to Environment Hawai`i, he stated, “We fully appreciate the Board of Land and Natural Resources’ role to protect the public trust, and this decision recognizes that the immediate cessation of EMI’s diversions would be contrary to the public interest. Of note, the BLNR’s decision also determined that the decline in taro cultivation in Wailuanui valley over the last century is not attributable to any shortage of water caused by the diversion of water by EMI.
“While we do question some aspects of the decision, we are glad that the BLNR will be exerting pressure to move the lease and insert flow standard process forward, and expedite final decisions. These are answers that we need in order to make key decisions about HC&S’ future
“As to our next steps, EMI will comply with the decision, and we look forward to the DLNR’s appointment of a monitor, as required by the BLNR’s decision. EMI will cooperate with the monitor regarding the measurement of Waiokamilo Stream flow and reduction of EMI’s diversion of Waiokamilo Stream water as may be necessary to comply with the BLNR decision.”
As of press time, the Land Board had not appointed a monitor and no water had been released. Deputy attorney general Linda Chow says the department is in the process of selecting a monitor, who will probably be a current DLNR employee with the Land Division, which had administered EMI and A&B’s revocable permits.
“We don’t know what the requirements, as far as time commitment, will be. We have a couple of people in mind,” she says, adding that Land Board chair Peter Young will appoint the monitor.
Chow says she has encouraged the parties to work together to implement the Land Board’s orders in the meantime. The lack of a monitor “doesn’t prevent the parties from doing what is necessary to copy with the orders,” she says.
With regard to the DLNR’s program to monitor stream flows upstream and downstream of each diversion, Chow says “it has not been finalized yet.”
“We are pushing for an immediate appointment, but are shocked by the nonchalance with which we’ve been greeted,” Murakami says. With regard to the release of the 6 mgd, he said, “”We think the order is clear; it should be yesterday. EMI attorneys are falling back on the requirement for the monitor, so he/she can begin the measurements of flow and temperature to give EMI a baseline of info. We think that is unnecessary; all that has to happen is for water to be released. We are at loggerheads with even implementing this simple provision, much like before.”
— Teresa Dawson
Volume 17, Number 11 May 2007
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