The hearing began on a gray, rainy September morning that brightened as the day unfolded. From their seats in the Haiku Community Center, members of the state Commission on Water Resource Management faced a sea of some 200 people, some standing, others crowded on rows of cafeteria benches.<\/p>\n
\tMany of those who came to testify or show their support by their presence alone wore their positions on their backs. A score of Filipino women sat to one side of the room wearing bright red T-shirts neatly printed with the name of their employer, HC&S (Hawaiian Commercial & Sugar), the state\u2019s last remaining sugar plantation and largest recipient of the roughly 160 millions of gallons of water a day that its parent and sister companies \u2013 Alexander & Baldwin and East Maui Irrigation Co. \u2013 divert from more than 100 East Maui streams. Opposite the HC&S crowd, people clad in plain white T\u2019s sporting slogans handwritten with black markers posted a large sign that read: HAWAIIANS WATER RIGHTS FIRST. A message on one shirt demanded: PUT IT BACK.<\/p>\n
\tAnd after two grueling days of technical presentations by Water Commission staff and testimony from dozens of Maui residents, the commission voted, for the first time since interim instream flow standards were set 20 years ago, to return diverted water to East Maui streams.<\/p>\n
The commission\u2019s decision addressed the flows of just eight of the 27 streams that were the subject of petitions filed seven and a half years ago that sought to amend stream flow to provide sufficient water to grow taro, support traditional and customary gathering, and restore natural habitats. For Wailuanui, Waiokamilo, Hanehoi, Honopou, Huelo, and Paluhulu streams, the commission voted to increase the IIFS. For Kulani and Pi`ina`au streams, the commission chose to keep the flow standards at status quo. While the total amount of water to be returned is unknown since there isn\u2019t enough data on current flows, under the new standards, flows in the six streams total more than 10 million of gallons of water a day (mgd).<\/p>\n
As for the flow standards for the 19 other streams, the commission plans to complete a comprehensive assessment of all 27 streams and reevaluate its decision about a year from now. In the meantime, Water Commission chair Laura Thielen said after the vote that her staff will work with EMI on short- and long-term changes to its diversion infrastructure to make sure that minimum flow standards for natural habitats and for those with superior water rights are met before<\/i> water is diverted for offstream uses.<\/p>\n
\tWhen discussing with the commissioners the length of time it will take to implement the six new interim flow standards given current budget constraints, Thielen said, \u201cPart of that is going to depend on the cooperation of the parties. Changing out the infrastructure in the current stream diversion is going to require the cooperation of EMI and that really is going to be the key in changing how that water is currently diverted to have the stream come first.\u201d<\/p>\n
Since A&B and EMI have argued that the 27 petitions should have been looked at comprehensively, which would have allowed the companies to better evaluate the total impact of the amendments, \u201cthe more they help cooperate with the transition, the more time [Water Commission] staff has to move on in a timely manner,\u201d Thielen said, adding, \u201cThey have good business reasons to cooperate with us.\u201d<\/p>\n
A Long History<\/i><\/b><\/p>\n
Since the late 1800s, East Maui residents have opposed the leasing or licensing of their watersheds to allow wealthy companies to divert the bulk of stream water that not only feeds their crops, including taro, but also provides habitat for aquatic organisms that they rely on for food. Despite their protests, Hawai`i\u2019s government, going back to King David Kalakaua, has allowed uninterrupted diversion of the streams by A&B\/EMI\u2019s extensive ditch system, which collects most of its water from state land.<\/p>\n
In the 1970s and 1980s, A&B\/EMI\u2019s state licenses for the East Maui watersheds of Huelo, Nahiku, Ke`anae, and Honomanu began to expire. As they did, the state issued the companies one-year month-to-month revocable permits, which it renewed every year over the objections of Hawaiians and conservation groups. That practice continued until May 2001, when the then-Native Hawaiian Legal Corporation attorney Carl Christensen and Maui attorney Isaac Hall requested a contested case hearing before the state Board of Land and Natural Resources on A&B\/EMI\u2019s request for a long-term lease of the four areas. They also objected to any renewal of the revocable permits. NHLC\u2019s clients included a group of East Maui taro farmers known as Na Moku `Aupuni O Ko`olau Hui, as well as Hawaiian cousins Beatrice Kekahuna and Marjorie Wallett. All of them live and farm in East Maui. Hall represented the nonprofit group Maui Tomorrow.<\/p>\n
Around the same time, NHLC filed the petitions with the Land Board\u2019s sister agency, the Commission on Water Resource Management, to amend the interim instream flow standards for 27 streams. (Instream flow standards refer to the minimum amount of water that must remain in streams to meet a variety of public trust purposes, including recreation, aesthetic values, and the needs of stream-related ecosystems. Interim standards were established as the status-quo flows existing at the time the law establishing the Hawai`i Water Plan was adopted, in 1987.)<\/p>\n
In its petition to the Land Board, NHLC noted that the Hawaiian Homes Commission Act and the Hawai`i Admission Act identify native Hawaiians as beneficiaries of the public and ceded land trusts and therefore, they have a right to expect the Land Board to charge reasonable rent for use of public lands. A&B\/EMI\u2019s payment of less than half a cent per thousand gallons was not reasonable, the NHLC argued. The petition alleged also that the diversion violates Na Moku\u2019s, Wallett\u2019s, and Kekahuna\u2019s traditional and customary native Hawaiian rights, as well as their riparian and\/or appurtenant rights.. Maui Tomorrow\u2019s petition made similar arguments and added that the state must consider the biological needs of streams as well.<\/p>\n
After holding hearings on the petitions, the Land Board, believing that it was the Water Commission\u2019s job to deal with water rights and stream restoration issues, ended up siding with A&B\/EMI and voted to issue a long-term lease to the companies. First Circuit Judge Eden Hifo overturned the decision in 2003, citing a 1982 water case (Robinson v. Ariyoshi) that allowed the transfer of water out of its watershed of origin \u201conly when it can be demonstrated that to do so would not be injurious to others with rights to water.\u201d<\/p>\n
Hifo ruled that the Land Board could not enter into a lease without a determination (either by the board itself or the Water Commission) of how the lease would affect traditional and customary rights. In either case, she wrote, the Land Board needed to prepare an environmental assessment or impact statement.
\n\u201cIf the BLNR believes it does not have the requisite expertise to investigate, then it should wait until the CWRM has acted or make its own application to establish instream flows reflecting the diversion it proposes to make, before authorizing the diversion,\u201d she wrote.<\/p>\n
With regard to the revocable permits to A&B\/EMI, Hifo left that matter to be resolved in the contested case. When the parties failed to negotiate temporary water releases to provide immediate relief to East Maui parties while the Water Commission and\/or Land Board attempted to resolve the water rights issues, contested case hearing officer E. John McConnell convened an interim hearing to determine an amount.<\/p>\n
\tIn March 2007, the Land Board decided, among other things, that 6 mgd should be immediately released into Waiokamilo Stream for Na Moku and that a Department of Land and Natural Resources water monitor should help determine how much additional water should be released for Kekahuna\u2019s lo`i. To address recent claims by NHLC that many provisions of the order have not been met, the Land Board is scheduled to hold a hearing on Maui some time this month. (See related article on in this issue.)<\/p>\n
Meanwhile at CWRM<\/b><\/i><\/p>\n
When Judge Hifo ordered the Land Board to either conduct its own investigation or wait for the Water Commission to determine new IIFSs before issuing a water lease to A&B\/EMI, the commission, whose staff assigned to protect instream uses consisted of just three people, was not prepared to take the lead. While the commission was receiving assistance in the form of U.S. Geological Survey studies of the geology and habitat availability of East Maui streams, study results were not released until 2005 and 2006.<\/p>\n
So despite the fact that the Water Code requires the commission to act on petitions to amend IIFSs within 180 days, NHLC\u2019s petitions languished for seven years. But over the last few years, with the addition of more commission staff and the release of two USGS studies, the commission\u2019s ability to tackle the requested IIFS amendments spiked.<\/p>\n
In December 2006, the commission approved a methodology to develop new IIFS, and on March 12, commission staff unveiled draft Instream Flow Standard Assessment reports for the East Maui hydrologic units of Honopou, Pi`ina`au, Hanehoi, Waiokamilo, and Wailuanui, which include eight of the 27 streams cited in NHLC\u2019s petitions.<\/p>\n
With the commission staff poised to issue IIFS recommendations for those streams, tensions between the opposing parties seemed to escalate. In May, the NHLC filed a waste complaint with the commission, claiming that HC&S admissions in 2005 during the Land Board contested case suggest that the company is over-watering their fields by an \u201cextravagant\u201d amount. Throughout July, members of Na Moku allegedly opened EMI diversions of Wailuanui Stream nearly a dozen times. And in August, HC&S filed a motion (which NHLC\u2019s Murakami has said was merely a delay tactic) with the commission to take action on all 27 petitions and the waste complaint at the same time.<\/p>\n
\u2018A Historic Occasion\u2019<\/b><\/i><\/p>\n
So on September 24, as at least eight armed enforcement officers from the Department of Land and Natural Resources stood guard, the Water Commission met in Haiku to address two agenda items. The first was HC&S\u2019s motion to consolidate the petitions and waste complaint; the second was staff\u2019s recommendations on amendments to the eight East Maui streams. The latter would be taken up only if the commission voted to deny the former. Commissioner Meredith Ching, who is also a vice president of A&B, recused herself from both items.<\/p>\n
After hearing from representatives from HC&S, the Hawai`i Farm Bureau Federation, Maui Electric Company, the ILWU, American Machinery, the Central Maui Soil and Water Conservation District, rancher David Nobriga, and Na Moku, all of whom (except, of course, Na Moku\u2019s representative) testified in favor of HC&S\u2019s motion, the commission voted to deny it. While a couple of the commissioners were not enthusiastic about the decision (member Donna Fay Kiyosaki voted \u201caye, with reservations\u201d), chair Thielen summed up the commission\u2019s rationale best: \u201cIt\u2019s been 20 years and we need to move forward,\u201d referring to the fact that none of the state\u2019s IIFSs have been amended since they were established in 1988.<\/p>\n
\tWhen the commission reconvened after a lunch break and a brief prayer by an East Maui resident calling on everyone to \u201cbe humble and be patient,\u201d Water Commission staff began its presentation, noting, \u201cThis is a historic occasion for all of us.\u201d Stream branch administrator Ed Sakoda stated that the proposed IIFS amounts are based largely on the USGS\u2019s hydrology and habitat availability studies. He added that all of the interim flows, if approved, would be subject to adaptive management, which would allow the commission to amend them based on new information.<\/p>\n
After the staff\u2019s presentation, the commission heard public testimony that ran late into the night and continued early the next morning. The vast majority of the testifiers, many of whom lived in East Maui residents, urged the commission to return water to the streams, while representatives for HC&S and A&B repeated their desire for a more comprehensive approach.<\/p>\n
Water Rights<\/b><\/i><\/p>\n
While the staff seemed to have grounded its recommendations in the hydrology and habitat availability estimates developed by the USGS, NHLC\u2019s Murakami, the final testifier, argued that meeting the needs of those with kuleana or appurtenant rights needn\u2019t be so complicated.<\/p>\n
\t\u201cBasically, if you can show you\u2019re growing taro in approximately the same way that the Hawaiians did in ancient times, from the time of the Mahele, then you\u2019re entitled to that amount of water today. Whatever water you need today that is basically the same that they would use many years ago is the amount of water you\u2019re entitled to. It\u2019s not supposed to be a major analysis of how much water should go into the stream. You go\u2026and ask the taro farmer,\u201d he said.<\/p>\n
And commissioner Lawrence Miike, who is also an attorney, seemed to agree, at least in regard to who has rights to water.<\/p>\n
In this case, \u201cHawaiians have first crack,\u201d he said, because of common law regarding kuleana and riparian rights. \u201cWhat about people who divert water away from kuleana land or riparian rights? They don\u2019t really have rights, they have uses,\u201d which are allowed only as long as they are reasonable and don\u2019t impinge on kuleana and riparian users.
\nAfter the commission voted to approve all of its staff\u2019s IIFS recommendations, Murakami told Environment Hawai`i<\/i> that while the habitat availability analysis seemed like a good idea to commission staff, \u201cthat does not account for whether that is enough for taro\u2026. They\u2019re totally silent to the critical need to meet the 77 degrees threshold in the water before pythium rot [a taro corm disease] becomes a problem. They could have said flow must maintain 77 degrees in the lowest lo`i.\u201d<\/p>\n
Regarding taro water requirements, Miike said during the hearing that the staff\u2019s recommendations were a starting point to see whether the amount released will be enough to satisfy kuleana growers. He added, \u201cAlan\u2019s people will still have to come forward with evidence that says, \u2018we have these kuleana lands and we want this amount of water.\u2019 You still gotta do that.\u201d<\/p>\n
While the commission prepares assessments of water needs to address the remaining 19 NHLC petitions, Murakami says he is working to help the commission immediately install temperature probes near lo`i that will \u201cgive them enough information on water temperature that they could, through the adaptive management strategy, release more water.\u201d<\/p>\n
Murakami adds that it appears that the Land Board has chosen to wait for the Water Commission to set new IIFS before proceeding with a lease and has basically stalled the contested case hearing. He says he\u2019s heard that the Land Board intends to make all of its decisions with respect to East Maui subject to the commission\u2019s restoration decisions.<\/p>\n
\u201cWe have to kind of decide where we\u2019re going to put our energy. At this point, I think it will have to be the commission,\u201d he says.<\/p>\n
— Teresa Dawson<\/p>\n
Volume 19, Number 5 November 2008<\/p>\n","protected":false},"excerpt":{"rendered":"
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