{"id":10391,"date":"2018-06-01T17:07:42","date_gmt":"2018-06-01T17:07:42","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=10391"},"modified":"2019-01-04T00:02:42","modified_gmt":"2019-01-04T00:02:42","slug":"group-sues-kauai-county-grove-farm-over-water-line-tied-to-blue-hole-diversion","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=10391","title":{"rendered":"Group Sues Kaua`i County, Grove Farm\u00a0Over Water Line Tied to Blue Hole Diversion"},"content":{"rendered":"

If the state Board of Land and Natural Resources grants permission to one entity to divert water from a stream for a particular use, can that diverted water then be used for other things by other entities that don\u2019t have a board permit? Alexander & Baldwin, Inc. and its East Maui Irrigation Company, for example, have permits from the Land Board to divert East Maui streams and they provide some of that water to the Maui Department of Water Supply for municipal use.<\/p>\n

However, in the case of Grove Farm using \u2014 and getting paid to transmit to the Kaua`i Department of Water\u2019s (KDOW) system \u2014 water diverted from the North Fork of the Wailua River under a permit granted to the Kaua`i Island Utility Cooperative (KIUC), the community group Kia`i Wai O Wai`ale`ale has argued that shouldn\u2019t be allowed unless Grove Farm also has a permit.<\/p>\n

On April 23, the group\u2019s attorney, Linda Paul, filed a complaint in 5th Circuit Court seeking to invalidate an environmental assessment prepared for the department\u2019s Kapaia Cane Haul Road water main project. Among other things, the group asked that the court declare that water resources that are \u201cnecessary and subject to the proposed action are unlawfully being consumed outside of a BLNR water lease or revocable permit.\u201d<\/p>\n

From the discussion by Land Board members last December about whether or not Grove Farm also needed a water use permit, it seemed like most of them didn\u2019t think so, at least not for water from the Blue Hole diversion used by KIUC. Whether Circuit Judge Kathleen Watanabe agrees remains to be seen.<\/p>\n

Should she find in Kia`i Wai O Wai`ale`ale\u2019s favor, the 1.7-mile, $3 million project would be on hold \u201cuntil compliance with all applicable laws is achieved,\u201d the complaint states.<\/p>\n

Consumptive Use<\/i><\/b><\/p>\n

Opposition to KIUC\u2019s use of water from the North Fork via the Blue Hole diversion goes back at least to December 2004, when the utility sought a 65-year lease so that it would have a secure source of water for its hydropower plants. The Office of Hawaiian Affairs challenged the utility\u2019s claim that it was a non-consumptive use and requested a contested case hearing.<\/p>\n

\u201c\u201cBased on information from the staff submittal \u2026 we understand that the water is diverted from the North Fork of the Wailua River [from Wai`ale`ale and Waikoko streams, specifically], run through the hydro power plants, and run into the South Fork. If that is the case, then the diversion clearly affects the amount of water in \u2018the stream,\u2019 in this case the North Fork of the Wailua River. Hence, the use would be consumptive under law,\u201d wrote then-OHA director Clyde Namu`o in a letter to then-board chair Peter Young.<\/p>\n

\u201cIn light of the fact that the sale of this lease will enable a major diversion of some of Hawai\u2018i\u2019s most significant streams for the next 65 years, it would seem clear that this kind of project is precisely the kind of activity that the [state\u2019s environmental review] law was intended to encompass,\u201d Namu\u2018o continued.<\/p>\n

To avoid a contested case hearing, KIUC entered into a memorandum of agreement with OHA: KIUC agreed it would submit a cultural impact assessment and stream biota study to OHA for review and approval.<\/p>\n

Fast forward to December 2017: After hours of public testimony, the Land Board narrowly voted (4-3) to renew a one-year holdover permit to KIUC for its use of water from the Blue Hole diversion. Before the vote, a representative from Kia`i asked for a contested case hearing, which the board denied after discussing the matter in executive session.<\/p>\n

The group, as well as several other Kaua`i residents who had flown to the board\u2019s meeting in Honolulu to testify, argued that the diversion left about a quarter mile stretch of the stream dry, depriving fauna of habitat and native Hawaiians of their ability to fully exercise their traditional and customary rights. It should be noted that a year earlier, vandals blocked the Blue Hole diversion with rocks and lowered a spillway to redirect flows back into the stream.<\/p>\n

Even so, kuleana landowner and Kaua`i taro farmer Debbie Jackson told the board that by allowing the diversion to continue, \u201cYou violate my rights as a beneficiary. \u2026 You violate your fiduciary responsibility by not protecting natural resources \u2026 severing my ohana\u2019s ability to practice. You violate the public trust doctrine. \u2026 I am personally negatively affected \u2014 spiritually, physically \u2014 by the taking of 100 percent of these waters. \u2026 I order you to stop.\u201d<\/p>\n

Bridget Hammerquist of Kia`i O Wai`ale`ale testified that Grove Farm takes the water diverted by KIUC into its Waiahi Surface Water Treatment Plant and gets paid $2 million a year to deliver about 2-3 million gallons a day to the county. (The plant receives water from the Blue Hole diversion, as well as several other streams located on Grove Farm lands, via the Kapaia Reservoir.)<\/p>\n

\u201cAre you suggesting Grove Farm has to get a permit?\u201d asked board member Stanley Roehrig.<\/p>\n

\u201cYes \u2026 since 2004,\u201d she replied.<\/p>\n

Roehrig asked Linda Chow, the deputy attorney general advising the Land Board, whether the state was entitled to the income from the transmission of water across private property and sale to the county.<\/p>\n

\u201cNo. Because they\u2019re not selling the water. They\u2019re selling the cost of transmission,\u201d she replied.<\/p>\n

Representatives from the Commission on Water Resource Management informed the Land Board that it was in the process of doing an instream flow standard assessment for the streams that feed into the Wailua River. If and when the Water Commission revises the interim instream flow standards (IIFS) of any or all of the streams covered in the assessment, it will no doubt seek to meet the Department of Hawaiian Home Land\u2019s water needs and ensure mauka-to-makai connectivity to benefit any native amphidromous stream organisms.<\/p>\n

\u201cWe are looking to develop IIFS for the section below Blue Hole diversion,\u201d reported CWRM stream protection branch head Dean Uyeno. \u201cTypically we would look at the watershed as a whole. We do have a USGS study of southeast Kauai. We\u2019re waiting for that study. Typically we would wait \u2018till it\u2019s done, but Ayron [Strauch, also with CWRM] has done some stream work to determine flows,\u201d he said.<\/p>\n

\u201cYour investigation includes whether or not there should be a partial diversion?\u201d Roehrig asked Strauch.<\/p>\n

\u201cIt\u2019s to assess all instream uses. If there\u2019s no water, obviously uses are impacted,\u201d Strauch said.<\/p>\n

Given that the Water Commission was preparing to propose flow standards for the affected streams, Kaua`i board member Tommy Oi moved to approve KIUC\u2019s permit.<\/p>\n

Board member Chris Yuen seconded the motion with conditions. One was that within one year, he wanted to see a proposal brought to the board for partial restoration of flows to the North Fork of Wailua River, especially if no new IIFS were adopted by then.<\/p>\n

\u201cThe diversion has gone on a long time. I don\u2019t think we can come up with numbers on the fly. I do sympathize with having some basic restoration to the stream,\u201d he said.<\/p>\n

Board members Roehrig, Keone Downing, and James Gomes, however, said they thought KIUC had had more than enough time to restore streamflow voluntarily.<\/p>\n

\u201cI probably agree with a lot of what you said,\u201d Downing told Yuen. \u201cI\u2019m still going to be voting no. People gotta look at being proactive, not reactive. If a stream was meant to be dry it wouldn\u2019t be a stream,\u201d he said.<\/p>\n

\u201cI’m also voting no. I do believe those streams were utilized by our kupunas. \u2026 I think it\u2019s been going on long enough,\u201d Gomes added.<\/p>\n

In April, shortly before Kia`i filed its complaint, the commission issued its instream flow standard assessment for the Wailua River. In it, the authors state, \u201cOne diversion that was restricting recruitment [of stream organisms] was the Blue Hole intake on the West Branch of the North Fork. However, damage from vandalism and the current operators management has resulted in continuous flow over the dam since the fall of 2016.\u201d<\/p>\n

\u2018Relief Main\u2019<\/i><\/b><\/p>\n

Kia`i did not fight the Land Board\u2019s decision in court after being denied a contested case hearing. It did, however, take up the fight over all of the stream diversions that feed into the Waiahi treatment plant, which is the county\u2019s primary source of water to Lihu`e. The environmental assessment for the Kapaia water main project provided the hook for the action.<\/p>\n

On paper, the project seems almost mundane: According to its environmental assessment, a section of the KDOW\u2019s water main is too narrow, causing flow rate and pressure limits to be exceeded. To bring them down to acceptable levels, the department wants to add a \u201crelief line,\u201d about two inches wider, that will run along that section and be connected at both ends, forming a loop. The second line will also provide badly needed redundancy, ensuring that critical facilities such as the Wilcox Medical Center and Wilcox Elementary School would continue to receive potable water in the case of a line break, the EA states.<\/p>\n

Because the new line would serve Grove Farm\u2019s development needs, as well as the county\u2019s, the company is footing a third of the line\u2019s construction costs.<\/p>\n

The finding of no significant impact was published by the Office of Environmental Quality Control on March 23.<\/p>\n

One of the problems, Kia`i states in its complaint, is that KDOW approved the project, which uses state lands and water, \u201ceven though neither Grove Farm or its subsidiaries, nor KDOW holds a water lease or revocable permit from the (BLNR) authorizing their use of southeast Kaua\u2018i\u2019s freshwater resources.\u201d<\/p>\n

\u201cThe Waiahi SWTP obtains water from the Kapaia reservoir, into which flows waters from at least the Hanama\u2018ulu stream, amongst other freshwater resources,\u201d the complaint states, adding that the water provides for residential, public, commercial, industrial, and resort uses.<\/p>\n

Native Hawaiian members of Kia`i have suffered as a result, the complaint argues. \u201cDiversion and reduction in natural flows to the Wailua stream complex has left Native Hawaiian members\u2019 auwai dry. Water must be trucked in \u2026 at some affected areas. \u2026 Plaintiffs seek a declaratory judgment stating that plaintiffs\u2019 Native Hawaiian members\u2019 constitutional rights to native Hawaiian traditional and customary practices have been violated by defendants\u2019 conduct,\u201d it states.<\/p>\n

The complaint, referencing the Hawai`i Supreme Court\u2019s Kaua`i Springs<\/i> decision, also points out that the county has \u201can affirmative duty to conserve and protect Hawai`i\u2019s public trust resources, including Kaua\u2018i\u2019s threatened and endangered species and its freshwater resources.\u201d<\/p>\n

\u201cThe waters of Wai`ale`ale are an essential component of the habitat of several threatened species including the highly endangered endemic Newcomb’s snail, the endemic wetland birds `alae`ula (moorhen) and `alae ke`oke`o (coot), and the native Hawaiian stream gobies (o`opu),\u201d it states, adding that the group wants a declaratory judgment that the county violated its obligations as a public trustee by failing to conduct an EA in compliance with state laws.<\/p>\n

What\u2019s more, Kia`i argues that the relief line will foster increased water use, despite the fact that the EA claims that it won\u2019t increase the system\u2019s capacity. And the group bases a number of its arguments on the belief that the line is actually a segment of a larger community development plan prepared by Grove Farm decades ago.<\/p>\n

\u201cThe [final EA] stated that the project would not result in the loss of any natural resources because the existing volume of water output from certain wells and the Waiahi SWTP would not increase, but did not comment on known future increased water output under the Lihu`e Development Plan,\u201d it states. This, despite the fact that \u201cKDOW acknowledged that the project is required to provide transmission facilities for the Grove Farm Lihu`e Development Plan\u2019s master planned community,\u201d it added.<\/p>\n

Viewed in that light, the group argues, the EA \u201cdid not identify potential impacts, evaluate the potential significance of each impact, or provide for detailed study of significant impacts on Southeast Kaua\u2018i\u2019s surface or ground natural freshwater resources, nor any of the potential direct, secondary, indirect, or cumulative impacts of increased consumption of those resources.\u201d Given that, Kia`i is seeking an order declaring that the EA was \u201cimpermissibly segmented and is therefore invalid.\u201d<\/p>\n

With regard to the need to bring the water system into compliance with flow rate and pressure limits, Kia`i argues that reasonable alternatives to the relief line, \u201csuch as the installation of appurtenant hydraulic fixtures, including pressure relief valves or pressure reduction valves,\u201d weren\u2019t considered.<\/p>\n

\u2014 Teresa Dawson<\/i><\/b><\/p>\n

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