{"id":11379,"date":"2019-05-31T00:50:45","date_gmt":"2019-05-31T00:50:45","guid":{"rendered":"https:\/\/environment-hawaii.org\/?p=11379"},"modified":"2020-01-06T22:04:53","modified_gmt":"2020-01-06T22:04:53","slug":"stakeholders-board-members-diverge-on-how-to-resolve-kauai-water-fight","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=11379","title":{"rendered":"Stakeholders, Board Members Diverge On How to Resolve Kaua\u2018i Water Fight"},"content":{"rendered":"\n
\"\"
“De-watered Waikoko Stream, March 6, 2019,” Bridget Hammerquist wrote of this photo in her testimony to the Land Board.<\/figcaption><\/figure>\n\n\n\n

The Kaua\u2018i Island Utility Cooperative (KIUC) is inching closer to securing a long-term lease for stream diversions that feed two hydroelectric plants on the island\u2019s east side. This month, the utility is expected to release a draft environmental assessment (EA) for the lease.<\/p>\n\n\n\n

Theoretically, the utility could be in a position to bid on a lease by year\u2019s end, if it manages to get a final EA accepted without being challenged and if the Board of Land and Natural Resources approves a watershed management plan beforehand.<\/p>\n\n\n\n

Standing in the way of that outcome are opponents with a long list of gripes.
Some object to the fact that a small part of the diverted water is sold by Grove Farm to the county Department of Water Supply after passing through the company\u2019s Waiahi surface water treatment plant.<\/p>\n\n\n\n

They also argue that the utility\u2019s diversions of Waikoko and Wai\u2018ale\u2018ale streams, which are located on state land, require a full environmental impact statement, not just an EA. Some have demanded that the utility\u2019s permit be revoked, claiming, among other things, that Waikoko Stream has not been restored as required by the existing permit and is dry in one stretch. Others have simply asked the Land Board to impose stricter conditions on the utility\u2019s revocable permit.<\/p>\n\n\n\n

At the Land Board\u2019s April 26 meeting, KIUC communications manager Beth Tokioka reported on the outcome of facilitated discussions earlier this year with stakeholders, including those critics, in an effort to address their concerns. In short, mediator Robbie Alm recommended that they enter a formal dispute resolution process that addresses all of the stream diversions that feed the old sugar plantation irrigation system, not just the two on state land.<\/p>\n\n\n\n

But KIUC has little time for more talk. The utility\u2019s permit expires in December and it\u2019s unclear whether the board can renew it, since the permit was authorized by a 2016 legislative act that sunsets this year.<\/p>\n\n\n\n

Given the discussion at the board\u2019s April meeting, it seems unlikely that KIUC will be bidding on a lease come January 1.<\/p>\n\n\n\n

<\/p>\n\n\n\n

Actual Needs<\/h4>\n\n\n\n

According to Tokioka, the Waikoko and Wai\u2018ale\u2018ale diversions provide 50 to 65 percent of the water that powers the plants.<\/p>\n\n\n\n

Water from about a dozen perennial and intermittent streams on Grove Farm lands join with water diverted from Waikoko and Wai\u2018ale\u2018ale to feed both plants. Tokioka said the utility historically took 14.2 million gallons a day (mgd) from the two streams on state land.<\/p>\n\n\n\n

In accordance with its permit approved last December, the utility has been taking a combined 9.6 mgd from the streams, \u201cunless flow is above median flows,\u201d she said.<\/p>\n\n\n\n

She said the upper hydro plant needs 25 mgd and the lower one needs 42 mgd for maximum power production of 1.5 megawatts.<\/p>\n\n\n\n

Because the Land Board decided last December to limit the amount of water KIUC can take from the streams so that mauka-to-makai flows can be maintained, the plants are likely operating well under full capacity. Given that, Earthjustice attorney Leina\u2018ala Ley testified in support of a formal resolution process \u2014 not necessarily a contested case hearing \u2014 to glean more detail about the utility\u2019s need to divert those two streams.<\/p>\n\n\n\n

\u201cWhere is the water going and what is KIUC doing with it? … There might be further opportunity to consider whether additional permit conditions should be put on KIUC,\u201d she told the board.<\/p>\n\n\n\n

\"\"<\/figure>\n\n\n\n

In written testimony, she and colleague Isaac Moriwake had proposed several conditions on KIUC\u2019s permit for the diversions. Among other things, they included requiring the installation of water gauges on streams feeding the ditch to help enforce minimumflow requirements, adjusting diversion structures so that they capture high flows, rather than low flows, and requiring KIUC to demonstrate its \u201cactual, reasonable-beneficial need for diversion of water from Wai\u2018ale\u2018ale and Waikoko streams in light of alternative water and electricity sources.\u201d<\/p>\n\n\n\n

At the board meeting, member Yuen expressed confusion over what the Earthjustice attorneys meant by KIUC\u2019s \u201cactual needs.\u201d<\/p>\n\n\n\n

\u201cFor full power, they need 25 mgd [for the upper hydro]. Take 1 mgd out, they lose 4-5 percent of their power. What more information do you want to have? I mean, there is a trade-off: power production and the amount of water returned to the streams,\u201d Yuen said.<\/p>\n\n\n\n

For one thing, Ley said, alternative water sources needed to be considered. As Kaua\u2018i resident Bridget Hammerquist testified later, about 26 mgd flows in Waiahi stream alone. Waiahi runs through Grove Farm land and also feeds into the ditch system.<\/p>\n\n\n\n

Ley also questioned whether it was necessary for the plants to run at maximum capacity at all times and mentioned the times they\u2019ve been off line. \u201cIt\u2019s clear they don\u2019t operate at maximum capacity. It\u2019s not necessary,\u201d she said.<\/p>\n\n\n\n

\u201cI suppose nothing is necessary. If the plant broke down, you would probably not have rolling blackouts on the island of Kaua\u2018i,\u201d Yuen replied. \u201cThe issue is, what point is the right tradeoff? People can disagree about that, but I\u2019m just not sure what more information is really necessary,\u201d he continued.<\/p>\n\n\n\n

Ley said she wanted to know how often water is taken from the two streams to meet actual power needs.<\/p>\n\n\n\n

To Ley\u2019s apparent concern that the streams weren\u2019t being left with adequate flows, Yuen reminded her that KIUC\u2019s revocable permit required 4 mgd to be returned to the streams to provide continuous mauka-to-makai flow. (The KIUC\u2019s Tokioka testified earlier that it has been meeting the permit\u2019s flow requirements.)<\/p>\n\n\n\n

\u201cI think there\u2019s a very clear answer as to how much power is generated by having these diversions. Just on an engineering basis, they can give you a very clear answer,\u201d Yuen said. KIUC had testified in December that if the board approved the permit conditions as recommended \u2014 which it did \u2014 the hydros would produce 22.4 percent less power.<\/p>\n\n\n\n

Ley countered that while KIUC has stated its flow requirements for maximum power generation, it wasn\u2019t clear whether the utility is using all of the power generated by the hydros all the time or whether power \u2014 and water \u2014 is being wasted.<\/p>\n\n\n\n

If Ley wanted that kind of detail, Yuen said the utility has figures on the kilowatt-hours generated. \u201cI would think they would run the plant 24-7 if it didn\u2019t break once in a while,\u201d he added.<\/p>\n\n\n\n

\u201cI\u2019m really baffled,\u201d he continued. \u201cEarthjustice, if you look at your website, has this, \u2018We are in favor of clean energy, we litigate in favor of clean energy.\u2019 I understand, a lot of places people don\u2019t like dams because … [they\u2019re] bad for salmon. I think we pretty much established the last time here the biological benefits of restoring these streams are probably not what we would get in some other places due to the smallmouth bass situation,\u201d Yuen said. According to biologist James Parham, the introduced fish \u2014 and not poor stream flow\u2014 have suppressed native goby populations in the streams.<\/p>\n\n\n\n

\u201cI\u2019m trying to get Earthjustice\u2019s position as an environmental law firm in reducing the amount of renewable energy produced by this plant,\u201d he said.<\/p>\n\n\n\n

\u201cI wouldn\u2019t say our interest is in reducing the amount of electricity,\u201d Ley replied. However, she said her firm believes there are missing pieces in KIUC\u2019s justification for taking water from the two streams on state land.<\/p>\n\n\n\n

Board member Stanley Roehrig asked Ley\u2019s thoughts on whether the board should simply cancel KIUC\u2019s permit, since concerns had been raised earlier about the diversions\u2019 effect on native Hawaiian traditional and customary practices.<\/p>\n\n\n\n

\u201cThat\u2019s not what we\u2019ve asked for at this time, but that\u2019s an option the board has,\u201d she replied.<\/p>\n\n\n\n

<\/p>\n\n\n\n

The Water of Kane<\/h4>\n\n\n\n

Ley\u2019s testimony focused, as did the utility\u2019s draft EA, mainly on KIUC\u2019s use of the water siphoned by stream diversions on state land.<\/p>\n\n\n\n

Like Alm, Roehrig took a broader view.<\/p>\n\n\n\n

\u201cI have some difficulty understanding how you can be talking about an environmental assessment when you\u2019re diverting a lot of water to Grove Farm, [which is] selling some of that water to the county,\u201d Roehrig told Tokioka.<\/p>\n\n\n\n

Tokioka said the EA simply supports KIUC\u2019s lease application for water for its hydros. \u201cWe don\u2019t consume any of that water in the plants,\u201d she said.<\/p>\n\n\n\n

She explained that KIUC has been conducting environmental studies since 2008 and has been collaborating with Department of Land and Natural Resources staff to make sure the EA will be sufficient. \u201cWe\u2019re not doing it in a vacuum,\u201d she said.<\/p>\n\n\n\n

To Roehrig\u2019s concern about the sale of water to Grove Farm, Maunakea Trask, a former attorney for Kaua\u2018i county, argued that there is nothing inherently wrong with diverting stream water for drinking or to generate electricity.<\/p>\n\n\n\n

\u201cEveryone\u2019s rights and interests are not mutually exclusive. And neither does any one side \u2014 there are no sides \u2014 any one party, or individual get to claim the Hawaiian. No one is all business,\u201d he said before pointing out that some of the company\u2019s critics likely drink Waiahi water, since Kaua\u2018i is such a small island.<\/p>\n\n\n\n

\u201cGrove Farm wants to get away from this dichotomy that diversions are automatically non-Hawaiian. There\u2019s nothing inherently pilau (rotten) or hewa (wrong) about water diversions. Hawaiians, out of all of Polynesia, were the best engineers because of ditch diversions. You look at all of Kalalau, that\u2019s all ditch diversions,\u201d he said.<\/p>\n\n\n\n

He added that many people tout the fact that \u2018Iolani Palace had electricity four years before the White House. \u201cBut how did King David Kalakaua light 325 incandescent lights by 1887? How did he light up Honolulu by 1888?\u201d Trask asked.<\/p>\n\n\n\n

\u201cHydros. Nu\u2018uanu Stream. All that was done by 1888. What is the state cutoff for establishing traditional and customary practices under the Hawai\u2018i Constitution? Under State v. Zimring<\/em>, November 25, 1892,\u201d he said.<\/p>\n\n\n\n

<\/p>\n\n\n\n

And Another Thing…<\/h4>\n\n\n\n

Because opponents of KIUC\u2019s diversions have consistently complained about Grove Farm\u2019s use of the water, company vice president Shawn Shimabukuro felt the need to respond at the Land Board meeting. He first addressed what he said was misinformation that\u2019s been spread about the quality of the drinking water produced by the Waiahi plant.<\/p>\n\n\n\n

In both written and oral testimony to the Legislature earlier this year, Hammerquist suggested that the plant\u2019s potable water was somehow toxic because its discharge contained high levels of bauxite, which contains aluminum.<\/p>\n\n\n\n


Bauxite occurs naturally in Kaua\u2018i soils and Shimabukuro assured the Land Board that the Waiahi plant has a state-of-the-art filtration system that eliminates any traces of elements such as aluminum and bacteria. He added that the plant is regulated by the state Department of Health and county Department of Water Supply (DWS).<\/p>\n\n\n\n

\u201cSecondly, you\u2019ve always heard Grove Farm is receiving in excess of $2 million a year [for Waiahi water]. This statement is made to portray Grove Farm as being a greedy, big bad corporation. However, just focusing on these revenues that we receive does not provide the compete story. We spent $11 million to build the facility and upgrades,\u201d he said, adding that there is also considerable cost to maintaining the land and reservoirs.<\/p>\n\n\n\n

The county water department reimburses Grove Farm about $1.6 million a year for the water, but that covers just the treatment plant\u2019s operating cost and doesn\u2019t include any charge for the electricity needed to run it, he said.<\/p>\n\n\n\n

Under an agreement between the DWS and Grove Farm, the company may receive a return on its investment in the plant, but that\u2019s not happened in last 15 years, he continued.<\/p>\n\n\n\n

\u201cReally, we\u2019re subsidizing the water. … This is a very critical facility. It provides water to 20 percent of Kaua\u2018i\u2019s residents. It provides water to the industrial and commercial sectors,\u201d he said.<\/p>\n\n\n\n

<\/p>\n\n\n\n

\u2018Molecules\u2019<\/h4>\n\n\n\n

Because of the company\u2019s relationship with KIUC, board member Roehrig wanted Grove Farm to somehow become an official participant in the Land Board\u2019s water allocation process.<\/p>\n\n\n\n

Grove Farm was involved in the facilitated discussions held earlier this year, but now that they\u2019ve ended, it\u2019s unclear how the company will continue its involvement, even in the event further discussions are deemed necessary.<\/p>\n\n\n\n

\u201c[A]s far as I\u2019m concerned, you\u2019re getting a pass, coming here to say whatever you want, but we can\u2019t look into your operations from this side. It\u2019s all a one-way street,” Roehrig told Trask. “You folks have to come before the Land Board with your petition and we\u2019ll work it out because we get all kinds of testimony against your folks\u2019 conduct. I\u2019m not passing judgment here today on who\u2019s right or wrong. If you want to get it worked out, you can\u2019t just be a visitor,\u201d he added.<\/p>\n\n\n\n

Board member Yuen had a completely different take.<\/p>\n\n\n\n

\u201cFrankly, I\u2019m baffled by why the Waiahi surface drinking water system keeps coming up in our discussion of the … diversions of Waikoko and Wai\u2018ale\u2018ale streams,\u201d he said. If the water from those streams stayed out of Grove Farm\u2019s ditch system, there would still be plenty of water in Waiahi stream to at least supply the 2 to 3 mgd needed for the water treatment plant.<\/p>\n\n\n\n

Trask added that even the state Commission on Water Resource Management doesn\u2019t think Grove Farm uses enough of the water diverted from the two streams to justify its participation in a contested case hearing over proposed interim instream flow standards.<\/p>\n\n\n\n

\u201cAccording to CWRM staff, it is not a direct feed. It was on a molecular level. They acknowledge there were certain water molecules that may have been shared,\u201d Trask said.<\/p>\n\n\n\n

\u201cWell, exactly. The molecules of water that get diverted mix with the molecules of water that were there already, and there\u2019s no way to separate,\u201d Yuen said.<\/p>\n\n\n\n

Despite Yuen’s and Trask\u2019s exchange, Roehrig stood firm in his belief that Grove Farm needed to get officially involved in KIUC\u2019s water lease process.<\/p>\n\n\n\n

Trask countered that the watershed was never designated by the Water Commission as a water management area, which would require all water users to obtain a use permit from the agency.<\/p>\n\n\n\n

Even so, Roehrig said a lease from the state to take the water would allow the company to better plan its future.<\/p>\n\n\n\n

To this, Trask argued that Grove Farm has constitutionally protected and common law rights as a riparian landowner, \u201cand there is no information to say we are misusing the water.\u201d<\/p>\n\n\n\n

\u201cThe reason why we\u2019re here today is to share our information. We only get attacked. These are the only venues we have to give the other perspective,\u201d Trask said. He added, \u201cIn all due respect, leases from the state are not safe, they are not secure, and they ride the sea of politics just like everything else.\u201d<\/p>\n\n\n\n

The diversion\u2019s critics were split.<\/p>\n\n\n\n

Ley sided with Trask and Yuen, pointing out that only about 11 mgd is diverted from Waikoko and Wai\u2018ale\u2018ale streams and there is at least 42 mgd flowing through the system before it reaches KIUC\u2019s lower hydro. \u201cIf Grove Farm\u2019s interest is 2 mgd, I don\u2019t see how it would tie in to the 11 mgd from these diversions, which is a small, small fraction of what\u2019s flowing through the Waiahi river,\u201d she said.<\/p>\n\n\n\n

Hammerquist, however, called it a grave difficulty that downstream users of the diverted water, such as Grove Farm, are \u201cinsisting on the maintenance and continuation of those two state land stream diversions, but they\u2019re not on the RP, they\u2019re not someone the Land Board has jurisdiction over. … I don\u2019t believe it\u2019s appropriate for others not on the RP to come in and justify what this RP user gets to take.\u201d<\/p>\n\n\n\n

<\/p>\n\n\n\n

The Path Forward<\/h4>\n\n\n\n

Trask started his testimony to the board by expressing his dissatisfaction with how the facilitated discussions went earlier this year. While it was the diversion\u2019s critics who had asked for them, when it came time to meet, Hammerquist\u2019s group, Kia\u2018i Wai o Wai\u2018ale\u2018ale, asked that Alm keep discussions with the water diverters and users of diverted water and the other parties separate.<\/p>\n\n\n\n

\u201cThen we were in our respective echo chambers. We wanted to get back together. We got stuff to share,\u201d Trask said.<\/p>\n\n\n\n

He said the only way to solve the impasse is through the traditional Hawaiian practice of ho\u2018oponopono. \u201cYou come in first with the mind to resolve this. You don\u2019t want to come in wanting to fight more. No sense. You talk … total truth, absolute truth … and then you work though it,” he said.<\/p>\n\n\n\n

A contested case is a bad vehicle to resolve this dispute because it takes too long and is way too expensive, he said, adding, \u201cIf we can all identify what our interests are, openly and honestly, then maybe we can reverse engineer where we\u2019re going to.\u201d<\/p>\n\n\n\n

Consultant Jonathan Scheuer, who paticipated in facilitated meetings on behalf of the Department of Hawaiian Home Lands, held the opposite view on how to proceed.<\/p>\n\n\n\n

\u201cYou have to get this process into a contested case or some other type of proceeding to clarify what people\u2019s rights are, what the rules are, the facts are. … Trying to have a facilitated conversation in the midst of a squishy administrative process doesn\u2019t really help,\u201d he said.<\/p>\n\n\n\n

Such a structured process would do better at clarifying the mechanisms through which the DHHL can physically get the water it\u2019s entitled to delivered to its homestead lands, he suggested.<\/p>\n\n\n\n

As things are, a bunch of state water gets into the control of a private entity, and, unless it is told to, it doesn\u2019t have to provide water to the DHHL lands, Scheuer complained.<\/p>\n\n\n\n

Yuen pointed out that without the diversions of KIUC, waters from Waikoko and Wai\u2018ale\u2018ale would remain in the north fork of the Wailua river \u2014 and further away from the DHHL\u2019s lands. Scheuer replied that the department was also interested in taking its 30 percent share of any revenue derived from the transmission of state waters.<\/p>\n\n\n\n

In any case, he added that the DHHL has not taken a position opposed to the diversion.<\/p>\n\n\n\n

Roehrig ended up endorsing a formal dispute resolution process, even though he began by opposing it. Early in the meeting, he said conflict resolution is \u201ca lot slower than you can resolve it by sitting in a room, because when you have a structured format, you have rules of procedure, rules of discovery.\u201d<\/p>\n\n\n\n

Once he had revised his view, Roehrig argued that a contested case be held before the Land Board, despite the fact that one that addresses interim instream flow standards is already ongoing before the Water Commission.<\/p>\n\n\n\n

\u201cCWRM is good for the instream flows, not for how much are you going to pay for your lease, where does the water go … how much are you going to pay the state for repair and maintenance of waterways,\u201d he said.<\/p>\n\n\n\n

When or whether the board \u2014 or the stakeholders \u2014 will decide how to proceed remains to be seen.<\/p>\n\n\n\n

— Teresa Dawson<\/em><\/strong><\/p>\n\n\n\n

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

\u2022 \u201cBoard Talk: Water Permits, Detector Dogs,\u201d<\/a> January 2019;<\/p>\n\n\n\n

\u2022 \u201cGroup Sues Kaua\u2018i County, Grove Farm Over Water Line Tied to Blue Hole Diversion,<\/a>\u201d June 2018;<\/p>\n\n\n\n

\u2022 \u201cBoard Talk<\/a>\u201d (East Kaua\u2018i Diversion), September 2005;<\/p>\n\n\n\n

\u2022 \u201cLetters<\/a>,\u201d April 2005; and<\/p>\n\n\n\n

\u2022 \u201cHawaiians, Conservationists Challenge Diversions of Streams in East Kaua\u2018i<\/a>,\u201d January 2005.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Kaua‘i Island Utility Cooperative (KIUC) is inching closer to securing a long-term lease for stream diversions that feed two hydroelectric plants on the island’s east side. This month, the utility is expected to release a draft environmental assessment (EA) … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":11386,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,14,454,28],"tags":[3],"class_list":["post-11379","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-board-talk","category-energy","category-june-2019","category-water","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11379","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=11379"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11379\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/11386"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11379"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11379"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11379"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}