{"id":14210,"date":"2022-02-05T20:08:18","date_gmt":"2022-02-05T20:08:18","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=14210"},"modified":"2022-02-06T05:58:16","modified_gmt":"2022-02-06T05:58:16","slug":"south-waikapu-kuleana-tenants-seek-greater-control-over-water-delivery","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=14210","title":{"rendered":"South Waikap\u016b Kuleana Tenants Seek Greater Control Over Water Delivery"},"content":{"rendered":"\n

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

In October, Environment Hawai\u02bbi <\/em>reported on a complaint that kuleana tenants with permits to use water from South Waikap\u016b Stream, one of the four streams of N\u0101 Wai \u02bbEh\u0101, were not receiving what they were due.<\/p>\n\n\n\n

They blamed the Wailuku Water Company, LLC, for restricting flows into their \u02bbauwai and accused the company of selling water to Kumu Farms, which does not have a permit for South Waikap\u016b water, and of allowing former WWC vice president Clayton Suzuki to receive water before them, despite him having a lower priority permit.<\/p>\n\n\n\n

On October 19, the Commission on Water Resource Management ordered Wailuku Water Company,and Waikap\u016b Properties, LLC, to stop delivering water to Kumu Farms from Reservoir 1, which receives water from South Wakap\u016b Stream.<\/p>\n\n\n\n

Under the state Commission on Water Resource Management decision and order for N\u0101 Wai \u02bbEh\u0101 water use permits, Kumu Farms was to use Waikap\u016b water only until certified organic fields that could be fed by WWC\u02bbs Wahie\u02bbe ditch became available. Once those fields were certified organic, Kumu Farms\u02bb water allocation from Waikap\u016b Strem would be reduced to 250 gallons a day for cattle.<\/p>\n\n\n\n

In response to the complaint, Kumu Farms informed the commission that water from the stream was only being provided as drinking water to livestock. <\/p>\n\n\n\n

\u201cAll farming operations have been moved to the makai side of the Waihe\u2018e Ditch and\/or to the makai side of Honoapiilani Highway. Kumu Farms is in the process of finalizing infrastructure that would allow it to transition to pumping water from the Waihe\u2018e Ditch,\u201d it stated in a September letter to the commission.<\/p>\n\n\n\n

Even so, commission staff learned from WWC president Avery Chumbley that his company had continued to provide 75,000 to 125,000 gallons per day of water from Reservoir 1 to Kumu Farms. That was a huge percentage of the 265,188 gallons per day that were supposed to be going to South Waikap\u016b \u02bbauwai users. Those users included Ho\u2018okahi Alves, John Minamina Brown Trust\/Crystal Smythe, George and Yoneko Higa, Teruo Kamasaki, Clayton Suzuki, and Nadao Makimoto.<\/p>\n\n\n\n

\"\"<\/a>
Cutline: H\u014dk\u016bao Pellegrino and Emilou Alves stand in a dry section of the \u02bbauwai above her property.
Credit: Commission on Water Resource Management<\/sub><\/figcaption><\/figure>\n\n\n\n

While the actual amount of water being released to the \u02bbauwai users during a staff site visit exceeded the 265,188 gallons required by the commission\u2019s decision and order, flows dried up about 250 feet beyond the point where water was dropped into a lower \u2018auwai segment, well before it could reach the Alves property and Smythe\u2019s upper kalo fields, according to a commission staff report.<\/p>\n\n\n\n

While it appeared from the site visit that WWC had not been restricting flows to into the \u02bbauwai, Hui o N\u0101 Wai \u02bbEh\u0101 president H\u014dk\u016bao Pellegrino still believed the company played a role in depriving the kuleana users of their water.<\/p>\n\n\n\n

He testified to the commission at the October meeting that the Hui wanted it on record that WWC had been selling water to Kumu Farms in apparent violation of the commission\u2019s June 28 decision and order. <\/p>\n\n\n\n

\u201cThat\u2019s 113 days and over 11 [million gallons], that should\u2019ve been either in the Waikap\u016b Stream or provided to the South Waikap\u016b kuleana farmers. Please commission, when will you bring the hammer down on these deplorable type of acts, corporate water theft and thugs, Avery Chumbley, Kent Lucien and Alan Kubo of Wailuku Water Company?\u201d he asked.<\/p>\n\n\n\n

In written testimony, Chumbley did not address the sale of water to Kumu Farms. He did, however, try to correct statements that had been made at the commission\u2019s September meeting.<\/p>\n\n\n\n

For instance, he noted that while some had said that a control gate before Reservoir 1 had provided water to the kuleana users but was later cemented shut after being vandalized, that was only partially true. The gate, he said, was an emergency control gate and was never used as a release point into the \u02bbauwai. It was, however, vandalized to release more water, he added.<\/p>\n\n\n\n

\u02bbAuwai Fix<\/em><\/strong><\/p>\n\n\n\n

In September, Pellegrino described his investigations into the improving the leaky, unlined \u02bbauwai so that it\u2019s more efficient. The cost to install a pipe was nearly $1 million, he found. What\u2019s more, the \u02bbauwai is on land owned by Waikap\u016b Properties and covered by a perpetual easement held by WWC.<\/p>\n\n\n\n

He proposed that the commission require the companies to allow kuleana users to manage the \u02bbauwai and\/or restore the traditional \u02bbauwai system, which is also on privately owned land.<\/p>\n\n\n\n

At the commission meeting in October, Waikap\u016b Properties manager Michael Atherton offered a temporary solution. <\/p>\n\n\n\n

\u201cWe have an 8-inch main line that we installed 10 years ago for a possible coffee plantation; I can tap into that line and run the pipe over to the kuleana ditch and drop it in right where our property touches the first kuleana property and it would easily be able to reach the South kuleana users and their lo\u2019i,\u201d he said, adding that he could accommodate Suzuki at the same time.<\/p>\n\n\n\n

He reported that he had been talking with Chumbley about acquiring the South Waikap\u016b system. \u201cIt\u2019s an attempt on Waikap\u016b Properties\u2019 part for a longer-term solution to create a win-win-win for us,\u201d he said.<\/p>\n\n\n\n

Earthjustice attorney Isaac Moriwake, who represents the Hui, stressed the need to find a long-term solution. <\/p>\n\n\n\n

\u201cWe have that short-term temporary solution that\u2019s a band-aid. The pipe is under high pressure and may burst and require repair. It\u2019s only a matter of time,\u201d he said. <\/p>\n\n\n\n

He argued that the commission has the authority “to protect the appurtenant rights that includes not just the paper quantity of water, but the \u2018auwai, water course and access rights. To say we can only give you a quantity makes no sense legally or practically. It\u2019s like me selling you a house and not the driveway,\u201d he continued.<\/p>\n\n\n\n

\u201cWe can\u2019t tell the kuleanas to reduce loss and improve efficiency, but not give them the recourse to do that. I want to make it clear that there\u2019s still more steps. We\u2019ll try to work with the parties to restore that traditional \u2018auwai and ultimately may have to come to this commission to order that access. We may disagree on the commission\u2019s authority. If so, let\u2019s put that on the table and make it clear where things stand and we can all move forward in figuring out how to protect kuleana rights like they should be, once and for all,\u201d he said.<\/p>\n\n\n\n

\u201cThe kuleanas didn\u2019t ask to be put on this system, they were told it\u2019s the way it\u2019s going to be because the plantations were irrigating their sugar crops, draining the streams dry,\u201d he said.<\/p>\n\n\n\n

He argued that the kuleana users have appurtenant and traditional and customary rights to restore a direct connection to the stream. \u201cThe opening of the \u2018auwai is on Mr. Chumbley\u2019s land. That traditional \u2018auwai could be opened tomorrow but Mr. Chumbley has indicated that he refuses to let that happen,\u201d Moriwake said.<\/p>\n\n\n\n

Pellegrino added that he worried that the traditional \u02bbauwai was in danger of being damaged, having recently witnessed clearing occurring on the south side on Chumbley\u2019s property near the \u02bbauwai. <\/p>\n\n\n\n

\u201cWe would like to get this in sooner than later and put in the infrastructure that\u2019s needed and ensure the kuleanas can manage this system independently as their kupuna once did,\u201d he said. He argued that using the traditional \u02bbauwai would also be more efficient and reduce waste.<\/p>\n\n\n\n

He proposed developing an agreement with Chumbley covering who can access his land to clean the ditch. \u201cI understand it\u2019s personal property and at the same time this is a traditional and customary right access issue that needs to be enforced and followed,\u201d Pellegrino said.<\/p>\n\n\n\n

Chumbley countered that \u201cthis alleged traditional \u02bbauwai usage was ceased in 1901. \u2026 I\u2019ve walked up and down this property from one side to the other and I can assure you that the elevations of the stream are significantly different. The alleged po\u2018owai [\u02bbauwai head] off of the stream are different than what some of the documents that we have indicate.\u201d<\/p>\n\n\n\n

“The topography of the land today is not conducive to allow for a po\u2018owai diversion off of this stream in this alleged location; so there\u2019s a tremendous amount of misinformation that\u2019s being represented to you today,\u201d he said.<\/p>\n\n\n\n

Commissioner Neil Hannahs asked Chumbley whether he would be able to accommodate the \u02bbauwai if it could be proven that it was a traditional system.<\/p>\n\n\n\n

\u201cI can’t say I would or wouldn’t because I need a better understanding of what the locations and course would be,\u201d Chumbley replied.<\/p>\n\n\n\n

He said a process and protocols for interaction could be developed among the commission, the diverters and community that would help address implementation issues regarding the June decision and order. <\/p>\n\n\n\n

\u201cWe made that suggestion at the August 24th meeting of staff and the [attorney general\u02bbs office], but nothing has come of it yet,\u201d he said.<\/p>\n\n\n\n

Moriwake seemed skeptical, noting that \u201cno one on our side has seen any of that.\u201d <\/p>\n\n\n\n

\u201cWe\u2019ve done mediations before and with the power differential in terms of people not only refusing to discuss whether an \u2018auwai should be open, but even refusing access on the land. Where is this mutual discussion going to take place and how\u2019s that going to happen? The commission needs to not micro-manage and do the job for everyone, but be present at staff level to make sure this moves forward,\u201d he said.<\/p>\n\n\n\n

Commissioner Aurora Kagawa-Viviani then suggested that community members should  draft their own protocols. \u201cIt might be the role of the commission to look at where that overlap is,\u201d she said.<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

By Teresa Dawson In October, Environment Hawaiʻi reported on a complaint that kuleana tenants with permits to use water from South Waikapū Stream, one of the four streams of Nā Wai ʻEhā, were not receiving what they were due. They … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14211,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[493],"tags":[3],"class_list":["post-14210","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-february-2022","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14210","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=14210"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14210\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14211"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14210"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14210"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14210"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}