{"id":1018,"date":"2014-08-29T00:44:38","date_gmt":"2014-08-29T00:44:38","guid":{"rendered":"http:\/\/localhost:8888\/EH\/?p=1018"},"modified":"2015-01-29T19:43:33","modified_gmt":"2015-01-29T19:43:33","slug":"commissions-order-on-na-wai-eha-baffles-its-most-experienced-member","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=1018","title":{"rendered":"Commission\u2019s Order on Na Wai `Eha Baffles Its Most Experienced Member"},"content":{"rendered":"
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After all the evidence and expert testimony presented during the Na Wai `Eha contested-case hearings in 2007 and 2008 on the minimum flows necessary to protect stream habitats and other instream values, which numbers did the state Commission on Water Resource Management finally go with?<\/p>\n

The ones that were never intended to be used for that purpose, at least not exclusively. Ones that were proposed as part of a U.S. Geological Survey study on how Waihe`e River and `Iao and Waiehu streams would respond if water was allowed to flow to the sea past diversions installed by Hawaiian Commercial & Sugar and Wailuku Water Company a century ago.<\/p>\n<\/div>\n

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Back in 2006, when the contested-case hearing over a petition to amend the interim instream flow standards (IIFS) for Waihe`e River, and `Iao, Waikapu, and Waiehu streams (collectively known as Na Wai `Eha) and over water use permits for the `Iao high-level aquifer was just beginning to ramp up, the USGS requested that HC&S and WWC, which together divert more than 50 million gallons of water a day from those streams, temporarily release water into `Iao and Waiehu streams and Waihe`e River. The USGS didn\u2019t propose any releases for Waikapu Stream at that time.<\/p>\n

The controlled releases, which would have occurred in three phases with increasing amounts of water released in each successive phase, would have allowed the USGS to measure stream flow, infiltration, and the physical habitat under different flow conditions in stream sections that are now often dry, USGS hydrologist Delwyn Oki stated in testimony submitted in the case.<\/p>\n

Oki noted that the controlled releases were not designed to predict the abundance of native aquatic species under different flow conditions, but were intended to determine the effects of flow on habitat.<\/p>\n

Even so, in its June 10 decision on the case, the Water Commission adopted the USGS\u2019s proposed Phase 1 controlled releases as the IIFS for Waiehu Stream and Waihe`e River: 10 million gallons a day for Waihe`e River, 1.6 mgd for North Waiehu, and 0.9 mgd for South Waiehu, for a total of 12.5 mgd below the diversions and, after stream losses, about 7 mgd at the mouth.<\/p>\n

The USGS had proposed a Phase 1 release of 9.5 mgd for `Iao, but the commission chose not to implement it because, as it stated in its decision, the stream\u2019s channelized sections and a steep drop-off limited the potential for ecological improvement.<\/p>\n

The commission also chose not to restore water to Waikapu Stream because it reached the ocean only occasionally and, therefore, was believed to have little habitat restoration potential \u2013 this despite testimony from HC&S and the USGS that controlled releases would help resolve whether Waikapu flows to the sea under natural conditions.<\/p>\n

\u201cAll they [the USGS] were doing was studying the hydrology,\u201d Earthjustice attorney Isaac Moriwake told\u00a0Environment Hawai`i<\/i>. \u201cThat\u2019s the context of all this.\u201d Moriwake represents Hui O Na Wai `Eha and the Maui Tomorrow Foundation, which petitioned to amend the IIFS of the four streams in 2006 to protect kuleana uses, traditional and customary practices, and stream health.<\/p>\n

When asked why the commission went with USGS\u2019s numbers, commission chair Laura Thielen said, \u201cThere was a variety of experts involved. The USGS is one of them. But I don\u2019t think I can reveal the substance of deliberations. I think those are confidential. The commission spent a lot of time deliberating, asking questions of our counsel and the hearing officer [commissioner Lawrence Miike] and there was a spectrum of opinion of what would be the appropriate levels…The bulk of us arrived at a decision we felt comfortable signing.\u201d<\/p>\n

Initial Reaction<\/i><\/b><\/p>\n

Whether or not it was appropriate for the commission to base its IIFS on numbers proposed as part of a hydrology study is just one of the many concerns critics have raised since the decision\u2019s release.<\/p>\n

The decision to leave two streams dry while accommodating the maximum needs of the largest user of diverted water, HC&S, has been described by Hui members as \u201cdisturbing\u201d and a \u201ckick in the butt\u201d in media reports.<\/p>\n

Earthjustice noted in its press release that the case has parallels to the seminal Waiahole water case on O`ahu, in which the Hawai`i Supreme Court \u201cchastised the commission\u2019s proceedings as being tainted by external pressure at the eleventh hour. Similarly, in this case, during closing arguments…HC&S dispensed with any legal argument and instead had its manager and A&B\u2019s chief financial officer, Chris Benjamin, deliver testimony lacking any connection to the evidence in the record and threatening the shutdown of the plantation and layoffs of all of its workers.\u201d<\/p>\n

Moriwake told\u00a0Environment Hawai`i<\/i>, \u201cAfter two reads, it appears to me…that what the commission tried to do was figure out what is the lowest point of stream flow at which point the offstream users would suffer some kind of shortage. It was clear they didn\u2019t want to go one drop beyond the point at which the offstream users would really have to start cutting back.\u201d He also argued that the commission focused on the lowest historical flows and peak water demands, then \u201cworked backwards from that point.\u201d<\/p>\n

\u201cFirst of all, that\u2019s illegal\u201d according to the Waiahole decision, he said. \u201cYou don\u2019t accommodate offstream users first.\u201d<\/p>\n

HC&S\u2019s Benjamin also released a statement, which said that although the Na Wai `Eha decision will increase his company\u2019s operating costs, it was a dramatic improvement over Miike\u2019s recommendation to establish IIFS totaling 34.5 mgd for the four streams.<\/p>\n

Benjamin added, \u201cMany factors…will ultimately determine our long-term survival, but no single factor is more important than access to water. The combined impact of the commission\u2019s three rulings [the Na Wai `Eha decision and two recent rulings on IIFS in East Maui] will result in substantially less water available to HC&S. We are encouraged, however, that the commission recognized the important public benefits served by offstream uses…\u201d<\/p>\n

Double-Talk<\/i><\/b><\/p>\n

In juggling the countless statistics and assertions raised during hearings and the laws that apply to IIFS, the commission seems to have tripped over itself in a few areas, possibly because the decision\u2019s final analysis and order were written by the majority, while the findings of fact and conclusions of law were written by Miike, who strongly opposed the final decision.<\/p>\n

The commission\u2019s treatment of HC&S\u2019s Well No. 7, which some have argued is an ideal alternative water source, is one example. In explaining how it decided reasonable uses, the commission declared, \u201cIn balancing instream values with offstream uses, the commission will not recognize the economic impact on diverted water that is being used inefficiently, losses that could be prevented through practical actions, or waters that have practical alternatives.\u201d However, cost seemed to play a role in the commission\u2019s determination of the amount of water available from Well No. 7.<\/p>\n

This well historically pumped about 19 mgd. An additional booster pump would incur costs of $1 million, and it would cost $475,000 to pump water to a field not currently able to be irrigated with the well existing configuration, the commission notes, adding that a power contract with Maui\u2019s utility limits the company\u2019s ability to run the pumps on a consistent and sustained basis.<\/p>\n

Based on the fact that pumping in the Kahului aquifer, which Well No. 7 taps, already exceeds the sustainable yield (although to no apparent detrimental effect) and claims that changes in farming practices have likely reduced the aquifer\u2019s recharge, the commission determined that the water currently available is less than the historical rate of 19 mgd.<\/p>\n

The commission then concluded that these uncertainties \u201cin combination with the commission\u2019s decision to place the full burden of remedying losses immediately upon HC&S\u201d led to its decision to limit the \u201cpractical alternative\u201d from Well No. 7 to 9.5 mgd. (It should be noted that other wells continue to pump the aquifer. According to Thielen, that\u2019s because irrigation water appears to be artificially recharging it.)<\/p>\n

\u201cThis alternative will not require capital costs, only the costs of pumping,\u201d the decision states.<\/p>\n

How the commission arrived at 9.5 mgd and how or whether the \u201cburden of remedying losses\u201d and other costs figured into determining that amount is not discussed.<\/p>\n

Another example is the approach taken in determining the IIFS. In its discussion of the IIFS proposed by the parties to the case — the Hui\/MTF, Maui County, WWC, the Office of Hawaiian Affairs, and HC&S — the commission discarded the county\u2019s and the Hui\u2019s recommendations.<\/p>\n

The county had proposed setting aside 3.2 mgd to meet current municipal needs, reserving an allocation of 9 mgd for future needs (the proposed Wai`ale Treatment Facility), and 6.1 mgd to meet irrigation needs for HC&S fields that cannot be irrigated by Well No. 7. All remaining water diverted by WWC would be returned to the streams.<\/p>\n

In addition to its proposed IIFS below the diversions of each stream, the Hui had recommended that the commission reserve water at the mouths of each stream — ranging from 0.07 mgd to 2.5 mgd — for kuleana users, traditional and customary users, and the Maui Coastal Land Trust.<\/p>\n

These requests to reserve water for offstream uses and leave the excess in the stream are contrary to the tenets contained in the Waiahole Supreme Court decisions, the commission stated. Yet the commission itself seems to have adopted that very approach with regard to HC&S\u2019s needs.<\/p>\n

In its section on balancing instream values and non-instream uses, the commission evaluates how the USGS\u2019s proposed Phase 1, 2, and 3 releases for Waihe`e River and Waiehu Stream would provide for HC&S\u2019s median and maximum water needs.<\/p>\n

Both the Phase 2 and 3 flows, totaling 20.5 mgd and 49.3 mgd, respectively, would require HC&S to seek alternatives for at least half of a given year. The Phase 1 flow, however, left enough water to meet both HC&S\u2019s median and 90-percent-maximum irrigation requirements.<\/p>\n

During peak irrigation, \u201c[o]nly the 1st phase flow would leave enough water for offstream use, but only if all 9.5 mgd of Well No. 7\u2019s practical alternative were used.<\/p>\n

\u201cTherefore, adopting the 1st phase controlled flows for the IIFS would provide the best balance between instream values and offstream uses,\u201d the decision states.<\/p>\n

Dissent<\/i><\/b><\/i><\/p>\n

With regard to the commission\u2019s determinations regarding Well No. 7, Moriwake says
\nthat there was no evidence in the record that proved the aquifer was being overpumped or what the real capacity of Well No. 7 is, \u201cwhich HC&S has the burden of providing.\u201d<\/p>\n

And he was not alone in his reaction to the commission\u2019s decision. Commissioner Miike issued a highly critical dissent to the commission\u2019s order. As a member of the commission who served during the original Waiahole ditch contested case, and who also was a hearing officer in that case and in the Na Wai `Eha case, Miike focused mainly on how the commission could have and should have complied with the state Constitution and Water Code and the Hawai`i Supreme Court\u2019s rulings in the Waiahole case.<\/p>\n

\u201cBy its decision, the majority has failed in its duties under the Constitution and the State Water Code as trustee of the state\u2019s public water resources,\u201d he concluded.<\/p>\n

To start, Miike cited the court\u2019s finding in the Waiahole case that, \u201cUncertainty regarding the exact level of protection necessary justifies neither the least protection feasible nor the absence of protection.\u201d And as for private commercial users, he cited the court\u2019s finding that the public trust \u201chas never been understood to safeguard rights of exclusive use for private commercial gain,\u201d and that a higher level of scrutiny applies to private commercial uses.<\/p>\n

Miike pointed out that in nearly every case where there was scientific uncertainty, the commission favored presumptions that protected private, commercial offstream uses — specifically, HC&S\u2019s — and held resource restoration to a \u201chigher level of scrutiny.\u201d<\/p>\n

The commission\u2019s decision not to restore water to `Iao Stream even though the commission determined that the stream retained some potential to maintain healthy populations of aquatic life was one of a number of examples of the commission choosing \u201cpresumptions to the detriment, and not the protection, of instream values,\u201d he wrote.<\/p>\n

He added that all four Na Wai `Eha were important for traditional and customary purposes and the commission had a duty to \u201creasonably protect native Hawaiian rights.\u201d<\/p>\n

He indicated the commission\u2019s decision to reduce the pumping capacity of Well No.7 by half was perhaps its most significant misstep, stating the move was \u201carbitrary\u201d and \u201cwithout any credible foundation.\u201d<\/p>\n

And in defiance of the state Water Code\u2019s requirement that commission weigh the importance of instream values against that of offstream uses, including the economic impact of restricting such uses, the commission decided to set the IIFS at \u201cthe amounts of water remaining after all offstream requirements were met; i.e., a residual — not a balanced — approach. Such an approach does not even rise to the level of the \u2018least protection feasible,\u2019\u201d he wrote.<\/p>\n

Miike offered a couple of examples of alternative IIFS — totaling 22 mgd and 29.4 — that he believed would have reflected a more reasonable restoration effort and might have had only a minor impact on HC&S.<\/p>\n

\u201cAbsent an economic analysis by HC&S, the commission cannot assume that HC&S\u2019s doomsday scenario [of a total plantation closure] would result from an occasional 10.5 to 13.4 percent decrease of its irrigation requirements for 15 percent of it entire operation,\u201d he wrote, referring to the impacts his proposed 29.4 mgd IIFS would have. \u201cThose decreases equate to only 1.6 to 2.0 percent of its irrigation requirements for its entire 35,000-acre operations, and then only on an occasional basis.\u201d<\/p>\n

In response to Miike\u2019s critique, Thielen points to language in the decision that notes, among other things, that the Waiahole decision states, \u201cReason and necessity dictate that the public trust may have to accommodate offstream diversions inconsistent with the mandate of protection, to the unavoidable detriment of public instream uses and values.\u201d<\/p>\n

She said Miike did a disservice to the process by inadequately addressing Wailuku Water Company\u2019s role in Na Wai `Eha water use (i.e. golf course irrigation), and Maui County\u2019s water management practices.<\/p>\n

\u201c[The hearing] focused too much on one diverter and not on broader issues,\u201d she said. The issue of whether WWC should continue to be the water purveyor in that area should have been a \u201chuge focus\u201d of the hearing.<\/p>\n

She added that decisions like these are meant to be decided by a group of people, not just one person, because it is more likely to arrive at \u201cthe most reasoned decision.\u201d<\/p>\n

\u201cCommissioner Miike, at the end of the day, he disrespected the rest of the commission in unfairly and wrongly characterizing the deliberations,\u201d she said.<\/p>\n

Benjamin\u2019s response to those who say the commission took a backwards approach: \u201cTo its credit, the commission’s process was thorough, evidence-based, carefully considered the law and court rulings. \u00a0All in all, a very deliberative process to meet competing needs for an increasingly scarce resource.\u201d<\/p>\n

Next Steps<\/i><\/b><\/p>\n

Earthjustice has stated that it plans to appeal the commission\u2019s decision in court. In the meantime, it has already filed a lawsuit regarding the county\u2019s acceptance of an environmental impact statement for its proposed Wai`ale Treatment Plant.<\/p>\n

The commission plans to proceed with issuing water use permits for Na Wai `Eha, where parties will likely have to \u201cgo through this all over again\u201d with respect to justifying their uses and proving that they are reasonable and beneficial, Moriwake said.<\/p>\n

In Moriwake\u2019s view, the Water Use Permit Application (WUPA) process gives some of the parties a \u201csecond bite at the apple\u201d to supplement deficiencies in the contested case hearing record. He added that he thought it was unwise for the commission to issue any water use permits anytime soon, since they could be overturned if the IIFS decision is thrown out by a court.<\/p>\n

Thielen added that there is no guarantee every party is going to get water, and said the issue of WWC\u2019s role as water purveyor will definitely be addressed in the permitting process.<\/p>\n

For Further Reading<\/b><\/p>\n

Environment Hawai`i<\/i>\u00a0has published several articles that will provide additional background to the dispute over West Maui surface water:<\/p>\n