{"id":12029,"date":"2019-12-01T04:35:55","date_gmt":"2019-12-01T04:35:55","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=12029"},"modified":"2019-12-01T05:34:39","modified_gmt":"2019-12-01T05:34:39","slug":"parties-offer-final-arguments-in-na-wai-eha-contested-case","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=12029","title":{"rendered":"Parties Offer Final Arguments In Na Wai Eha Contested Case"},"content":{"rendered":"\n
\"\"

Commission on Water Resource Management heard oral arguments on Maui last month in the Na Wai Eha contested case hearing. (From left to right: Mike Buck, Wayne Katayama, Neil Hannahs, Suzanne Case, Paul Meyer, and Kamana Beamer.) <\/figcaption><\/figure>\n\n\n\n

\u201cNo pressure, but history is in your hands,\u201d attorney Pamela Bunn told the Commission on Water Resource Management during oral arguments in the Na Wai Eha contested case hearing, held November 19 in Wailuku.
<\/p>\n\n\n\n

Fifteen years after Earthjustice, on behalf of the community group Hui o Na Wai Eha, filed petitions to amend the interim instream flow standards for Wailuku, Waiehu, and Waihe\u2018e rivers and Waikapu Stream, all in Central Maui, and 13 years after the commission designated the watersheds feeding those streams as a surface water management area, a decision on who gets what and how much water will remain in the streams is near. <\/p>\n\n\n\n

But at the November hearing, it became\nclear that the commission\u2019s task won\u2019t be\nas simple as approving the 500-plus-page\nproposed findings of fact, conclusions of\nlaw, and decision and order (D&O) issued\ntwo years ago by hearing officer and former\nWater Commissioner Lawrence Miike.\n<\/p>\n\n\n\n

Hawaiian Commercial & Sugar (HC&S), to which Miike proposed allocating 15.65 million gallons of water a day (mgd), received commission approval in September to transfer control over its water use permit application to Mahi Pono, LLC. Mahi Pono, which also receives diverted stream water from East Maui, is still in the nascent stages of growing diversified food crops on a portion of HC&S\u2019s former sugarcane lands. <\/p>\n\n\n\n

At the start of oral arguments, commission chair Suzanne Case noted that Mahi Pono, the Office of Hawaiian Affairs (which Bunn represents), and Earthjustice\u2019s clients (the Hui and Maui Tomorrow Foundation) had agreed to a stipulation and order under which Mahi Pono would receive an existing-use water permit for just 11.22 mgd. The company would be given an initial allocation of 9.35 mgd, and would receive an additional 1.87 mgd if and when it met the following conditions: <\/p>\n\n\n\n

1) a licensed surveyor confirms that Mahi\nPono has planted 1,850 acres of food crops in\nthe Waihe\u2018e-Hopoi fields before December\n31, 2021;\n<\/p>\n\n\n\n

2) the company consistently uses 4.5 mgd from its Well 7 for reasonable-beneficial\nagricultural use;\n<\/p>\n\n\n\n

3) the company has an actual need for the\nadditional water;\n<\/p>\n\n\n\n

4) the company develops and implements\na plan to minimize system losses; and\n<\/p>\n\n\n\n

5) the company provides the community\ngroups, OHA, and the commission with\nthe information necessary to verify that the\nconditions have been met.\n<\/p>\n\n\n\n

Among other things, the company also agreed to invest $250,000 in the plan to address system losses, to fully close a low-flow intake on Spreckels Ditch on Wailuku River that had been partially sealed by HC&S, and to not transfer the permit or use its water allocation for anything other than agricultural use. <\/p>\n\n\n\n

\u201cMahi Pono raises the standard for a\nnew chapter in the history of agriculture\nfor this region,\u201d Earthjustice attorney Isaac\nMoriwake told the commission.\n<\/p>\n\n\n\n

\u201cThrough this long process, there have been community members that have actually passed on. This has been a long process and people have been very patient. … They will finally have an adjudication of their water rights,\u201d he said. <\/p>\n\n\n\n

The commission is expected to issue a decision some time next year. <\/p>\n\n\n\n

More Water\n<\/strong><\/p>\n\n\n\n

While the stipulation provided some respite to what could have been a contentious debate over Mahi Pono\u2019s water needs, OHA and the community groups were far from satisfied with the rest of Miike\u2019s proposed D&O. <\/p>\n\n\n\n

In particular, they argued that water\nshould be allocated to the dozens of taro\nfarmers who applied for a traditional and\ncustomary (T&C) rights use permit, but\nwere not recognized by Miike because they\nfailed to show they were lineal descendants\nof people who used the properties in the\nsame way they proposed to more than a\ncentury ago.\n<\/p>\n\n\n\n

The stipulation with Mahi Pono frees up 4.43 mgd that Miike had slated for HC&S. Bunn suggested that some of the other allocations Miike proposed could also be reduced. For example, she mentioned that Makani Olu Partners, LLC, which mainly raises cattle, would be awarded 138,200 gallons per day, or 2,090 gallons per acre per day under Miike\u2019s proposal. She pointed out that other similar operations in the area used far less or none at all for irrigation. <\/p>\n\n\n\n

\u201cThe question is whether that is reasonable-beneficial if nobody else needs it,\u201d she said. <\/p>\n\n\n\n

Avery Chumbley, representing the company, thought it odd that OHA, Hui o Na Wai Eha and Maui Tomorrow would oppose such a small allocation. <\/p>\n\n\n\n

\u201cThey propose a 90 percent reduction. …\nIt seems like a lash-out against me personally\nas operator of Wailuku Water Company,\u201d\nhe said.\n<\/p>\n\n\n\n

Bunn and Earthjustice\u2019s Isaac Moriwake argued that the proposed allocation to Wailuku Country Estates was also too high. \u201cThe water [the D&O] does award is phenomenal, close to 4,000 per day per lot,\u201d Bunn said, adding that was more per-acre than what Mahi Pono plans to use. Moriwake added that Wailuku Country Estates itself has stated that it limits users to 2,666 gallons per day. \u201cThere should be no basis for allocating any more than that for sure,\u201d he said. <\/p>\n\n\n\n

Wherever the water for T&C permit applicants comes from, OHA and the community groups argued that denying them permits would be unjustified. <\/p>\n\n\n\n

\u201cNothing in Hawai\u2019i\u2019s constitution, statutes, or legal precedents requires an ahupua\u2019a tenant seeking to exercise his or her T&C right to cultivate kalo to show that his or her direct ancestors cultivated kalo in the same location prior to November 1892. All that must be shown is that the traditional and customary practice of kalo cultivation was\nestablished in the ahupua\u2019a comprising Na\nWai Eha prior to November 1892, which is\nboth undisputed and undisputable,\u201d OHA\nstated in its exceptions to the proposed\norder.\n<\/p>\n\n\n\n

Miike had recognized only 13 of the 40 T&C permit applications submitted by native Hawaiian applicants who established their right to cultivate kalo, OHA continued. \u201cImposing the restriction would thus plainly violate the Commission\u2019s \u2018affirmative duty to . . . preserve and protect traditional and customary native Hawaiian rights,\u2019\u201d OHA stated. <\/p>\n\n\n\n

Hui president Hokuao Pellegrino contested Miike\u2019s decision not to grant him and his wife Alana a T&C permit. \u201cBoth my wife and I are kanaka maoli. … There was no process for me to prove I am genealogically connected to this parcel, even though I am,\u201d he told the commission. Even though he can prove a connection, he continued, \u201cit is irrelevant because I am kanaka.\u201d <\/p>\n\n\n\n

He asked that his water use permit for his kuleana taro patches be categorized as a Category 1 T&C permit. Miike had proposed granting the Pellegrinos water under Category 2 permits for appurtenant rights holders, as well as a Category 3 permit for new uses. Category 3 permits, however, would only be honored if there was enough water, Miike proposed. <\/p>\n\n\n\n

Bunn said it was wrong for Miike to have imposed the lineal descendent requirement. \u201cI don\u2019t think there is any precedent. That is an issue that would force OHA to appeal [the commission’s decision]. It has a very concrete impact,\u201d she said. <\/p>\n\n\n\n

She also asked the commission to eliminate Miike\u2019s recommendations capping water for T&C uses to one acre. \u201cAgain, there is simply no precedent for that. That is something Mike apparently thought would be a good idea without really saying why. Again, it has practical consequences,\u201d she said. <\/p>\n\n\n\n

Implementation\n<\/strong><\/p>\n\n\n\n

In describing how the proposed D&O vastly underestimated the water needs of the kuleana parcel where he and his father operate a catfish farm, Bryan Sarasin, Jr., also shed light on how it\u2019s nearly impossible to ensure consistent water flow from the ditches operated by Wailuku Water Company (WWC), which he and many other kuleana landowners rely on. <\/p>\n\n\n\n

He said he\u2019s spent countless weekends\ncleaning the auwai by hand trying to increase\nflow for kuleana users, \u201cto get every drop\nflowing to the farmers on the auwai.\u201d\n<\/p>\n\n\n\n

\u201cIt is in your hands to allow me to do\nthis [raise fish] for the rest of my life … or\nleave big holes in the ground,\u201d he told the\ncommission.\n<\/p>\n\n\n\n

Commissioner Neil Hannahs asked\nSarasin whether his issue was with the\namount allocated in the proposed D&O\nor the amount of water that actually gets\nto his property.\n<\/p>\n\n\n\n

He said it\u2019s both. The proposed D&O allocated one sixth or one seventh of what his farm needs, he said, adding that he has provided information to the Water Commission clarifying how the farm\u2019s water needs were calculated in his father\u2019s water use application. \u201cI was able to show beyond a shadow of a doubt this is the amount of water we use … to have fish grow quickly, stay disease free, stock ponds…,\u201d he said. <\/p>\n\n\n\n

In addition to the need for a larger allocation, he said there is an ongoing issue about water flow through the ditch system. He said he has to do a lot of the clearing himself. \u201cIt\u2019s a lot of work. … Sometimes you gotta drop in by ropes just because of the terrain.\u201d <\/p>\n\n\n\n

Commissioner Kamana Beamer asked if\nthe community could collectively manage\nthe system if the commission established a\nprocess to allow for that.\n<\/p>\n\n\n\n

\u201cBeing brutally honest, we\u2019ve got a number of people on the system willing to cooperate. Some, not so cooperative for whatever reason or reasons,\u201d he said. He added that there are big swaths of land between some of the intakes that go untended. \u201cWho\u2019s going to take care of this? Some people put in a lot of work, a lot more than what they should be, while others don\u2019t do their share and enjoy the water,\u201d he said. <\/p>\n\n\n\n

Sarasin\u2019s plight exemplified the difficulties surrounding the implementation and enforcement of interim instream flow standards, as well as any water use permits that the commission grants. <\/p>\n\n\n\n

Paul Mancini, attorney for WWC, complained that the company will be tasked with distributing water to permittees in an equitable fashion, but with no standards to guide how that should be done. <\/p>\n\n\n\n

\u201cThere are very few users that are metered,\u201d he said. Even so, Miike\u2019s D&O tasks WWC with developing an implementation plan to allocate water, after first conferring with the Water Commission. \u201cIt\u2019s an improper delegation. These are obligations on the commission,\u201d he said, adding that the commission needed to develop rules to regulate the allocation of water to permittees taking water from the four streams. <\/p>\n\n\n\n

It could take a year to pass such rules, he continued, expressing his hope that an implementation plan is in place before low stream flows require WWC to restrict allocations to permittees. <\/p>\n\n\n\n

For one thing, \u201cwe have no way to accurately measure what is getting down and how it\u2019s used,\u201d Mancini said, adding that WWC also doesn\u2019t have a control mechanism to reduce the permittees\u2019 use. <\/p>\n\n\n\n

\u201cThey [WWC] need help. … I think that\u2019s what the commission is for, is granting help,\u201d he said. <\/p>\n\n\n\n

Commissioner Mike Buck asked what\nWWC\u2019s obligations were as the diverter of\nthe water.\n<\/p>\n\n\n\n

WWC\u2019s Chumbley said he thought that would depend on what the commission decides. \u201cShould we have gages? Yes. Maintain the system to an operational standard? Yes. Beyond that, we\u2019re just diverting to someone else,\u201d he said. <\/p>\n\n\n\n

Commissioner Beamer asked whether\nWWC is required to deliver water to people\nwith appurtenant rights vs. people who pay\nthe company.\n<\/p>\n\n\n\n

\u201cAn excellent question,\u201d Mancini replied.\nHe explained that the state Public Utilities\nCommission, which regulates utilities such\nas WWC, has not allowed the company\nto take on any new customers in the past\ndecade. Providing water to a user with\nappurtenant rights who is not a current\ncustomer may require the PUC to make\nan exception.\n<\/p>\n\n\n\n

\u201cIn any case, some tariff would be established by the PUC,\u201d Chumbley added. Users with appurtenant rights would be subject to a tariff that they have not had to pay in the past, he argued. \u201cNow that we\u2019re a quasi-public utility, there will be a public hearing process…. The PUC will determine if there is a tariff or rate to participate in that system,\u201d he said. <\/p>\n\n\n\n

Mancini said that WWC obviously wants\nmore water users, but there is a problem with\naccess to the ditches that\u2019s not dealt with in\nthe proposed implementation program.\n<\/p>\n\n\n\n

Commissioner Hannahs asked WWC what it has invested in infrastructure improvements to avoid system losses. <\/p>\n\n\n\n

Chumbley said he didn\u2019t bring that information with him and the last real study done to determine losses and improvements to be made was in 1984. He said that the company has downsized from 15 reservoirs to eight, and has repaired diversion weirs, earthen banks and other places where there may have been leaks. <\/p>\n\n\n\n

He said the company lost $2.5 million between 2007 and 2018. \u201cWe\u2019re not making money. We\u2019ve burned through any cash reserves we had. … We\u2019re at a financial point I\u2019m not sure how much longer I can continue to be able to do this. Had I had more cash reserves, maybe I would have done more system losses work,\u201d he said. <\/p>\n\n\n\n

Given that, Hannahs said it was \u201chard to hold out a lot of hope there will be improvements in system losses.\u201d <\/p>\n\n\n\n

\u201cYou\u2019re talking about millions of dollars to\nline ditches. … It\u2019s an open system that only\nfunctions with a certain amount of water\ngoing through it,\u201d Chumbley explained.\n<\/p>\n\n\n\n

Even so, Hannahs said an investment in stemming system losses has to be made at some point. He raised the allegation \u2014 backed up by video \u2014 made by Hui president Pellegrino that WWC was dumping unused, diverted water from its system into Kealia Pond. <\/p>\n\n\n\n

Chumbley explained that the irrigation\nsystem was built to take all of the water\nfrom the streams and use it all on a daily\nbasis. Today, it doesn\u2019t always happen that\nthe amount diverted matches up exactly\nwith what\u2019s used, he said. \u201cIt\u2019s not dumping\nwater, it\u2019s releasing water. … If you have an\nopen system … you don\u2019t have a valve to\nturn on and off,\u201d he said.\n<\/p>\n\n\n\n

To Hannahs, it sounded like more communication with the ditch users on their water needs would help. While Mancini had argued that the commission should not delegate its authority to implement the permit allocations to WWC, Hannahs asked, \u201cWhy not have an expectation you all would work together and reach an agreement like Mahi Pono [that] leads to better management and better resource use?\u201d <\/p>\n\n\n\n

Mancini replied that his concern was with the lack of standards for decisions on prorating of water. \u201cIt creates a serious problem because everybody is going to be pointing fingers on it,\u201d he said. <\/p>\n\n\n\n

Already, Chumbley said he didn\u2019t think\nthere was enough water in the ditch system\nto meet the 39 mgd in permitted allocations\nproposed in the D&O. At best, between 17\nmgd and 24 mgd flows in the system these\ndays, he said.\n<\/p>\n\n\n\n

What if WWC is not viable going forward, and if so, how will that affect the kuleana owners who depend on the ditch system? Moriwake said he thought there is an opportunity to reconnect those kuleanas to the stream to make sure there\u2019s more consistent water delivery. <\/p>\n\n\n\n

Historically, it was recognized that kuleana owners had priority use of the ditch water, he said. <\/p>\n\n\n\n

Given Chumbley\u2019s claims about the impending PUC tariffs, Commissioner Buck asked Moriwake who should pay for the diverted water and who should not. <\/p>\n\n\n\n

\u201cI can start with who should not pay. The\nkuleana users who have been made to rely\nexclusively on the ditch system. There\u2019s an\nobligation [by the diverter], having cut them\noff [from the streams],\u201d Moriwake replied.\n<\/p>\n\n\n\n

With so many non-paying users, Moriwake conceded that it may not be viable for a private company to run the ditch system. \u201cTalks are ongoing or are already done for this system to be transferred to a government entity,\u201d he said. <\/p>\n\n\n\n

Commissioner Beamer asked whether it could require a diverter to ensure that appurtenant rights are guaranteed. <\/p>\n\n\n\n

Moriwake said it could, because in all of Hawai\u2018i case law on original water commissioners, going back to the 1800s, water\nrights included not only the quantity, but\nthe ability to access it. \u201cI realize this is a new\nissue for the Water Commission, but the\nlegal authority is there,\u201d he said.\n<\/p>\n\n\n\n

Beamer returned to his idea of collective management, especially since the commission\u2019s limited staff would not be able to be \u201con the ground every day\u201d to enforce the commission\u2019s decision. <\/p>\n\n\n\n

Moriwake agreed that the situation in Na Wai Eha was a \u201ctremendous opportunity for that type of collaboration. It starts with Hui o Na Wai Eha. … The board is unbelievably stocked with really capable, insightful leaders,\u201d he said.<\/p>\n\n\n\n

Earlier in the meeting, Moriwake suggested that it may not be necessary to maintain the system as it is today. \u201cI would venture that the system of the future is going to be a much smaller system. There may be segments you may have to spin off to the community,\u201d he said. \u2014 Teresa Dawson <\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

“No pressure, but history is in your hands,” attorney Pamela Bunn told the Commission on Water Resource Management during oral arguments in the Na Wai Eha contested case hearing, held November 19 in Wailuku. Fifteen years after Earthjustice, on behalf … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":12030,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[461,28],"tags":[3],"class_list":["post-12029","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-december-2019","category-water","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12029","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=12029"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12029\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/12030"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12029"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12029"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12029"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}