{"id":10150,"date":"2017-12-30T23:53:14","date_gmt":"2017-12-30T23:53:14","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=10150"},"modified":"2019-11-21T00:33:54","modified_gmt":"2019-11-21T00:33:54","slug":"water-commission-struggles-to-address-failure-to-enforce-minimum-stream-flows","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=10150","title":{"rendered":"Water Commission Struggles to Address Failure to Enforce Minimum Stream Flows"},"content":{"rendered":"
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Waikapu gate.<\/figcaption><\/figure>\n

It\u2019s been more than a decade since the community group Hui o Na Wai Eha petitioned the state Commission on Water Resource Management to amend the interim instream flow standards (IIFS) of Waihe\u2018e and Wailuku rivers and Waikapu and Waiehu streams. The streams (collectively known as Na Wai Eha or \u201cthe four great waters\u201d) have long been diverted for agricultural and other purposes, to the detriment of stream organisms, area residents and farmers with appurtenant water rights, and native Hawaiians wishing to exercise traditional and customary practices. With its petition, the Hui hoped to put an end to that.<\/p>\n

It\u2019s been more than three years since the parties to the contested case that grew out of that petition agreed to a set of new IIFS for those streams that seemed to meet the needs of both instream and offstream users. But what seemed like a victory back then has turned out to be a letdown, to put it mildly. That\u2019s according to the Hui, Maui Tomorrow Foundation (MTF), and the Office of Hawaiian Affairs, which claim that Wailuku Water Company (WWC), which owns and operates the irrigation system that diverts water from those streams, has consistently and as recently as a few months ago failed to meet its commitments under the April 2014 settlement agreement, which the Water Commission made official in an order that same year.<\/p>\n

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In trying to address their complaints, the commission\u2019s staff has admittedly struggled in the face of limited data and staffing. Last month, it brought the general matter of monitoring and enforcing IIFS to the full commission for discussion. Having received recommendations from its hearing officer for new IIFS for dozens of diverted streams in East Maui and for Na Wai Eha, the commission is poised to issue decisions on them soon, bringing Maui\u2019s infamous, decades-long water disputes closer to a resolution. But as Hui president Hokuao Pellegrino told the commission at its December 19 meeting, \u201cIf we have these laws in place, the IIFS, but you can\u2019t enforce them, let\u2019s be honest, what\u2019s the point?\u201d<\/p>\n

\u2018Shut, Locked and … No Flow\u2019<\/strong><\/em><\/p>\n

Most recently, on October 9, Hui members hiked to the South Waikapu dam intake, ditch and reservoir to investigate the potential cause of the unusually low flows in Waikapu Stream that area taro farmers and residents had noticed throughout September. Under the settlement agreement and commission order, WWC must release enough water to the stream to meet an IIFS of 2.9 million gallons a day (mgd). That, apparently, wasn\u2019t happening. What the Hui found instead was that the sluice gate where water is to be released back into the stream was \u201ccompletely shut, locked and that NO (0%) flow was returning to the Waikapu Stream below to meet the IIFS. Furthermore, the South Waikapu Intake Dam was diverting 100 percent of the Waikapu Stream. … The stream was dead between the Dam and Kalena Tributary,\u201d Hui board members wrote in an email that same day to Dean Uyeno, head of the commission\u2019s stream protection and management program.<\/p>\n

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\u201cHui o Na Wai Eha would like to kindly ask CWRM to address this issue with WWC immediately,\u201d they wrote.<\/p>\n

Commission staff apparently spoke with and emailed WWC president Avery Chumbley about the Hui\u2019s claims. Chumbley\u2019s response: the low flows were due to low rainfall, not excessive water diversion.<\/p>\n<\/div>\n

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Unswayed, attorneys for the Hui, MTF, and the Office of Hawaiian Affairs followed up with a November 6 letter to the Water Commission noting that the Hui had raised similar concerns in August 2016 about WWC\u2019s apparent failures to meet the IIFS and even filed a formal complaint. They also included some of the commission\u2019s own graphs of stream flows that showed when and how long the IIFS had not been met in 2016.<\/p>\n

\u201cWhile the commission and stakehold- ers have acknowledged the value of settlements like the 2014 IIFS order to resolve streamflow disputes, the commission can undoubtedly appreciate the viability of such agreements now and in the future critically depends on diligent compliance, monitoring, and enforcement. … [I]t should be clear that the current practice of no enforcement at all provides zero<\/em> incentive to comply and zero<\/em> consequences for violations \u2014 and directly results in the poor compliance record seen today,\u201d attorneys Isaac Moriwake and Pamela Bunn wrote.<\/p>\n<\/div>\n

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Weeks later, on November 29, Water Commission director Jeffrey Pearson wrote Chumbley a three-page letter that acknowledged WWC\u2019s position and evidence suggesting that low rainfall in 2017 was the reason why Hui members saw low flows in Waikapu.<\/p>\n

Pearson admitted that his staff has had difficulty monitoring flows in the stream following a September 2016 flood that washed away its gage. It installed a new one only last October.<\/p>\n

While he noted that gage data suggests low rainfall was responsible for low flows in some cases, he added, \u201cthere is an unexplained low-flow period from late April to early May when streamflow drops below the 2.9 mgd IIFS. The 2016 streamflow record, in conjunction with the photographs provided by Earthjustice [Moriwake\u2019s firm] and the Hui, shows that Wailuku Water Company continues to take water at the South Waikapu Ditch diversion despite periods of low streamflow. This is in opposition to the IIFS agreed upon by the parties and approved by the commission.\u201d<\/p>\n

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Pearson stopped short of calling it a violation. Instead, he simply reminded Chumbley that the 2014 agreement and order requires WWC to release water at the South Waikapu ditch sluice gate when flows in Waikapu Stream fall below 2.9 mgd.<\/p>\n

\u201cDuring periods of low rainfall, there should be no water flowing into Reservoir #1,\u201d Pearson wrote.<\/p>\n

\u2018Flabbergasted\u2019<\/strong><\/em><\/p>\n

To Pellegrino, a Waikapu taro farmer who said he relies on the IIFS being met at all times, the commission staff\u2019s response to the Hui\u2019s concerns was disheartening. At the Water Commission\u2019s meeting last month, he argued that, \u201cfrom the get-go, there were challenges with Wailuku Water Company not meeting the IIFS.\u201d He claimed that WWC repeatedly failed to meet the IIFS for Waikapu Stream. \u201cNot for a week, not a month, but for four months in 2016 alone,\u201d he said.<\/p>\n

Part of the problem, he said, was that the commission\u2019s streamflow monitoring gages were installed on Chumbley\u2019s private property, leaving the community with no way to ensure on its own that the IIFS were being met. Because the commission only checks the gages and uploads the data to its website quarterly, the community is left in the dark for months, Pellegrino added.<\/p>\n

When he or others notice low stream flows, \u201cwe contact staff. Rarely do we get a response,\u201d he said.<\/p>\n

Pellegrino said that when he broached the Waikapu Stream issue with CWRM staff at a recent meeting on Maui, the response he got was, \u201cI called Avery and he said there\u2019s water in the stream.\u201d<\/p>\n

\u201cFor all the work we do in the community, that to me just wasn\u2019t right,\u201d Pellegrino told the commission.<\/p>\n

Pellegrino went on to say that at a later meeting with several other concerned members of the public, Pearson said that there was no way to enforce the IIFS, no process in place to address situations of non-compliance, and no ability to impose fines or a violation.<\/p>\n

\u201cI along with 20 other people were flabbergasted at this honest response,\u201d Pellegrino said. \u201cI like to work in collaboration. I don\u2019t like to scream and yell and make waves … It\u2019s disheartening when the type of responses come back: \u2018Hey, I know you collected pictures and video and data. I talked to the president of Wailuku Water Company and he calls you a liar.\u2019 … That\u2019s the kind of responses we\u2019re getting from the staff,\u201d he continued.<\/p>\n<\/div>\n

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\u201cI will tell you, if it was any of us doing anything illegal or not pono to these resources, I would be certain the table would be flipped and we would be fined to the greatest amount. The Duey issue last year is a perfect example of that,\u201d Pellegrino said, referring to an August 2016 enforcement case the commission staff brought against Hui members John and Rose Marie Duey for failing to obtain a permit for a pipe that fed their lo\u2018i in a timely manner. (The commission rebuffed the staff\u2019s effort.)<\/p>\n

\u201cWe almost have seven months in two years that Wailuku Water Company was supposed to comply and they weren\u2019t. Seven months. I don\u2019t know what else needs to be said in regards to that,\u201d Pellegrino said.<\/p>\n

He conceded that the practice of enforcing IIFS was fairly new for commission staff, \u201cbut that still doesn\u2019t justify the lack of enforcement and inability to impose something other than a three-page letter reminding [WWC] there is an IIFS,\u201d he said.<\/p>\n

Pellegrino offered some solutions: Make the diverters contribute to streamflow monitoring equipment and pursue community-based management with the Hui.<\/p>\n

\u201cWe have an amazing board,\u201d he said, adding the Hui had just received a grant through the Office of Hawaiian Affairs to explore creating its own monitoring program for the streams.<\/p>\n

\u201cIf we can\u2019t rely on you as enforcers, what else can we do? … We can\u2019t wait for somebody to fly over from O\u2018ahu after two weeks following a formal complaint. … We need somewhat more immediate attention,\u201d\u2019 he said.<\/p>\n

He stressed how uncomfortable he was complaining to the commission and that he offered his criticisms \u201cwith the utmost respect for all of you.\u201d<\/p>\n

\u201cI know they\u2019re not fooling around,\u201d he said of staff. \u201cThey have one hydrologist for all Hawai\u2018i streams. We want you to be staffed. We want you to have the budget,\u201d he said.<\/p>\n

Questionable Authority<\/strong><\/em><\/p>\n

Before Pellegrino had testified, CWRM\u2019s Pearson and Uyeno briefed the commission on the staff\u2019s IIFS monitoring practices and enforcement abilities. Earlier in the meeting, the commission approved a request from Uyeno to purchase software that he said will lay the groundwork for real-time monitoring of streams statewide. \u201cEnforcement relies on adequate monitoring. We can\u2019t regulate if we can\u2019t measure,\u201d Uyeno said.<\/p>\n<\/div>\n

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With regard to having a regulatory\u00a0framework to enforce IIFS, he argued that the state Water Code \u201cis not set up for that\u201d and the commission\u2019s administrative rules are \u201cpretty much silent\u201d on the matter. \u201cIt says IIFS should be met. That\u2019s it,\u201d Uyeno said. He and Pearson later added that recent rule changes to increase the total allowable fines from $1,000 per violation to $5,000 per violation applied to permits, not IIFS.<\/p>\n

When asked by commissioner Neil Hannahs how it enforces IIFS, Uyeno replied that he tries to work with the diverters. For example, if there is evidence that the East Maui Irrigation Company was not releasing enough water from its system to meet IIFS in East Maui, commission staff would call EMI manager Garret Hew (now retired) and ask him to open a sluice gate a little further.<\/p>\n

\u201cYou work to cure, but there\u2019s not penalty,\u201d Hannahs said.<\/p>\n

Eventually, Uyeno said the stream monitoring system should get to a point where diversion data provided by WWC or EMI could feed into an online system where staff and others can compare reported water diversions with what\u2019s in the stream.<\/p>\n

Should staff find that an IIFS violation has occurred, commissioner Mike Buck asked whether water use permits could somehow include a condition that would allow penalties to be imposed for failure to comply with IIFS.<\/p>\n

\u201cI\u2019m trying to link permits to the existing rules. I haven\u2019t heard if we can do that,\u201d Buck said.<\/p>\n

\u201cWe can look into it. There\u2019s no answer now,\u201d commission chair Suzanne Case replied.<\/p>\n

When it came time for members of the public to weigh in, Bunn, who has been representing the Office of Hawaiian Affairs in the Na Wai Eha case for more than a decade, said, \u201cI\u2019m sort of appalled at what I\u2019m hearing today.\u201d<\/p>\n

She disputed CWRM staff\u2019s claims that they can\u2019t enforce IIFS because its rules are silent on penalties for non-compliance, citing the commission\u2019s administrative rule 13-169-3(a), which deals with penalties. It states: \u201cAny person who violates any provision of this chapter or any permit condition or who fails to comply with any order of the commission<\/strong> [emphasis added] may be subject to a fine imposed by the commission. … For a continuing offense, each day\u2019s continuance is a separate violation.\u201d<\/p>\n

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This provision is why, when parties to the Na Wai Eha contested case reached the mediated agreement in 2014, the commis- sion enacted an order adopting all of the agreement\u2019s findings of fact, Bunn said.<\/p>\n

\u201cSo there is an order of the commission establishing the IIFS. It may not be the neatest thing, like enforcing a permit, but it\u2019s doable. I\u2019m not sure where the idea is coming from that it\u2019s not enforceable, and frankly, I think if the commission staff believes that it\u2019s not enforceable, the commission has a public trust duty to change that,\u201d she said.<\/p>\n

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\u201cYou can either try to enforce [IIFS] given these provisions, and if the diverter appeals it, see what the Supreme Court says. I think based on Waiahole [a seminal water rights case on O\u2018ahu], we have a pretty good idea of what they would say about the enforceability of the IIFS. They called it basically the linchpin of the commission\u2019s fulfilling its public trust obligations,\u201d she continued.<\/p>\n

While she didn\u2019t think any additional rulemaking was necessary, she suggested that the commission could decide to add some kind of penalty provision in its upcoming IIFS orders.<\/p>\n

\u201cThe idea that the plantations still have control over these streams despite the code, despite the efforts of the commission, despite the efforts of the communities, it\u2019s unacceptable,\u201d Bunn said.<\/p>\n

When commissioners asked whether staff still claimed it was unable to levy a fine for IIFS violations, Pearson suggested that his and Uyeno\u2019s positions were perhaps being misunderstood and that while cur- rent rules may be sufficient to pursue an IIFS fine, crafting a solid case would still be difficult.<\/p>\n

\u201cWe can levy a fine and fight through the courts. We can do that. Our struggle is, do we fine for one day? Do we fine for one day it wasn\u2019t raining, when there may have been inadequate rain?\u201d he said.<\/p>\n

When commissioner Buck pointed out that they had just been presented with a graph showing when and for how long stream flows in Waikapu dipped below the IIFS, Pearson suggested that what was missing from the equation was data on how much water, if any, was also being diverted by WWC.<\/p>\n

\u201cWhat were the flows above the diversion? Were they diverting or not diverting?\u201d he asked. He said the commission needed a gage above the diversions to help staff determine whether or not failures to meet the IIFS were WWC\u2019s fault.<\/p>\n

\u201cI\u2019m sitting here and I can\u2019t come up with a way to bring a finable action,\u201d he told the commission.<\/p>\n

That being said, he acknowledged that the commission needed to work harder to find a way to get a handle on IIFS enforcement and get it quickly.<\/p>\n

Buck suggested that staff not wait until they have the perfect monitoring and enforcement scheme in place to go after potential IIFS violations.<\/p>\n

\u201cIt\u2019s hard to bring the water diverters to the table. They\u2019d rather not show up… I sense we kind of erred on \u2018Let\u2019s just try to do it voluntarily.\u2019 This is not just seven days. This is seven months [of potential violations]. … If we don\u2019t even try, it sends a real message,\u201d Buck said.<\/p>\n<\/div>\n

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\u201cIt\u2019s time to bring some people to the table. If we\u2019re not successful, we\u2019re successful in letting them know we\u2019re trying,\u201d he said.<\/p>\n

Pearson expressed some reticence to hanging a violation case on data from monitoring stations located on private land that would require trespassing to read them.<\/p>\n

To this, Buck countered, \u201cIf we issue an order or permits, there\u2019s got to be a stipulation for access. It\u2019s a privilege to divert water.\u201d<\/p>\n

\u2018Getting Away with Murder\u2019<\/strong><\/em><\/p>\n

To staff\u2019s claim that it lacked the data to discern whether low flows were the reason IIFS were not being met, Bunn told the commission she believed that was \u201csomething of a red herring\u201d in the Waikapu case. Pearson\u2019s November 29 letter to Chumbley included a chart showing that WWC diverted 37.3 million gallons into Reservoir #1 during September, the same month Chumbley claimed the low flows were due to low rainfall.<\/p>\n

The entire time the Hui was being \u201cbrushed off,\u201d CWRM staff had the data proving that a violation occurred, she argued. A monthly diversion of 37.3 million gallons works out to a diversion of 1.2 mgd at a time when there shouldn\u2019t have been any diversion, she argued.<\/p>\n

Commissioner William Balfour, at least, was convinced by the Hui\u2019s arguments.<\/p>\n

\u201cI cannot understand how Wailuku Water Company gets away with what they get away with,\u201d he said.<\/p>\n

The company controls the water, but what do they use it for? he asked.<\/p>\n

\u201cThey give it to basically the farmers, kalo primarily, and it goes to the County of Maui for potable water. Beyond that … I grew up in Waikapu. This reservoir [WWC\u2019s Reservoir 1], what in hell does it feed?\u201d he said.<\/p>\n

\u201cWailuku Water Company has an obligation first of all to install mechanisms for measuring, to monitor and report it. Plain and simple. You\u2019re talking to a plantation boy, 40-plus years. Right is right. Wrong is wrong. As far as I can figure it out, they\u2019re getting away with murder,\u201d Balfour said.<\/p>\n

Moriwake warned the commission that the Waikapu case was \u2018just the tip of the iceberg,\u201d given the impending IIFS deci- sions. \u201cWe have every opportunity to get this right. … This is a golden opportunity,\u201d he said.<\/p>\n

Moriwake noted that the state Agribusiness Development Corporation and the Kekaha Agriculture Association had not yet complied with IIFS for Kaua\u2018i\u2019s Waimea River and its tributaries, eight months after reaching a settlement agreement, \u201cwhich we heralded as groundbreaking.\u201d<\/p>\n

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\u201cWe\u2019re just pulling teeth on the implementation details,\u201d he said, adding that as hard as it is to get diverters to agree to new IIFS, \u201cwe\u2019re having a whole new mountain to climb on the back end, implementing and enforcing the law.\u201d<\/p>\n

Hannahs, like Buck, seemed eager to pursue some kind of enforcement in the Waikapu case, at least. \u201cLet\u2019s try things. The party can come and argue against it. Why is this so difficult here? … The patience of a community, they come to us with evidence in a reasonable and rational way, how do we make this a priority?\u201d Hannahs asked.<\/p>\n

Ayron Strauch, also with the stream protection and management program, replied that the matter should be the commission\u2019s highest priority and that it will be for the new staff member that the commission expects to hire. Also a priority: developing a mechanism for reviewing data from diverters. \u201cIt\u2019s only because the community brought this to us we have this before us,\u201d he said.<\/p>\n

Uyeno added that the data analysis software whose purchase the commission had just approved should also help.<\/p>\n

In the end, the commission resolved to require staff to provide an outline of terms setting forth the conditions in proposed permits or orders regarding streamflow measurements and penalties. As attorney David Frankel noted earlier in the meeting, state law grants the commission the power to require the diverters to install streamflow monitors.<\/p>\n

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\u201cYou\u2019ve noted the problem. … You\u00a0need to be requiring the folks who have these permits to tell you how much they\u2019re diverting every day. It\u2019s distressing that\u2019s not often a condition,\u201d he said.<\/p>\n

He also urged the commission to ask the state Board of Land and Natural Resources \u2014 which grants annual revocable permits to EMI and its parent company, Alexander & Baldwin, for the diversion of dozens of East Maui streams \u2014 to make it a permit requirement that A&B\/EMI install meters to monitor streamflow.<\/p>\n

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\u201cDo that when they [A&B\/EMI] come in for their RP [revocable permit] renewable every year,\u201d he suggested before adding that the commission should also require its staff to provide annual reports on IIFS compliance.<\/p>\n

\u2014 Teresa Dawson<\/strong><\/em><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

It’s been more than a decade since the community group Hui o Na Wai Eha petitioned the state Commission on Water Resource Management to amend the interim instream flow standards (IIFS) of Waihe‘e and Wailuku rivers and Waikapu and Waiehu … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":10152,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[432],"tags":[3],"class_list":["post-10150","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-january-2018","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10150","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10150"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10150\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/10152"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10150"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10150"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10150"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}