{"id":14298,"date":"2022-03-01T00:46:00","date_gmt":"2022-03-01T00:46:00","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=14298"},"modified":"2022-03-01T00:45:22","modified_gmt":"2022-03-01T00:45:22","slug":"commission-tweaks-na-wai-eha-order-to-ensure-flows-to-kuleana-permittees","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=14298","title":{"rendered":"Commission Tweaks N\u0101 Wai \u2018Eh\u0101 Order To Ensure Flows to Kuleana Permittees"},"content":{"rendered":"\n

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

On February 15, the state Commission on Water Resource Management amended its June 2021 decision in the N\u0101 Wai `Eh\u0101 contested case hearing on water use permits. The change means that Waikap\u016b Properties now is responsible for providing water to the South Waikap\u016b kuleana \u02bbauwai.<\/p>\n\n\n\n

Under the original decision and order, Wailuku Water Company, LLC, was required to deliver 265,000 gallons a day into the mile-long, unlined \u2018auwai that serves South Waikap\u016b kalo farmers with priority water rights.<\/p>\n\n\n\n

Following a complaint filed last August by Hui o N\u0101 Wai \u2018Eh\u0101 that the farmers were not receiving the water they were due, commission staff determined that WWC was providing the required amount, but it just wasn\u2019t enough to reach the kuleana users.<\/p>\n\n\n\n

Hui president H\u014dk\u016bao Pellegrino testified to the commission last month that the farmers had been without water from their \u2018auwai for 482 days, well before the commission\u2019s order last year.<\/p>\n\n\n\n

\u201cThey have not been able to cultivate kalo. Lo\u2018i have completely dried up, cracked and are full of weeds,\u201d he said.<\/p>\n\n\n\n

Waikap\u016b Properties also receives water from WWC\u2019s ditch system, which diverts water from the four streams in the area known collectively as N\u0101
Wai \u2018Eh\u0101 (the four streams). Last October, Waikap\u016b Properties manager Mike Atherton offered to connect a 4\u201d pipe to his company\u2019s 8\u201d pipe so that
water could be directed into a lower reach of the \u2018auwai, thereby minimizing some of the water loss and relieving WWC of the responsibility of meeting the kuleana users\u2019 needs.<\/p>\n\n\n\n

On February 20, with Atherton\u2019s proposal formally incorporated into the commission\u2019s decision and order, Waikap\u016b Properties began piping water into the \u2018auwai.<\/p>\n\n\n\n

While the water actually reaches the lo\u2018i now, problems remain, Pellegrino told Environment Hawai\u2018i<\/em>.<\/p>\n\n\n\n

\u201cThere are very serious issues with the pipeline,\u201d he said, referring to Waikap\u016b Properties\u2019 main 8\u201d line. The line is mostly underground and is somehow not providing enough water into the \u2018auwai.<\/p>\n\n\n\n

\u201cThey\u2019re saying it wasn\u2019t well-maintained. There are a lot more issues than originally thought,\u201d he said, adding that the company is having to hire an outside contractor to fix it.<\/p>\n\n\n\n

\u201cWe\u2019re very grateful. No doubt about that. This system is going to be more efficient,\u201d he said.<\/p>\n\n\n\n

In the meantime, the kuleana users are getting nearly half of the water they\u2019re supposed to. And in addition to the pipelineproblems, the many months without water has left the ground parched.<\/p>\n\n\n\n

Pellegrino said it took more than half a day for the water diverted into the 4\u201d pipe to reach the first lo\u2018i kalo.<\/p>\n\n\n\n

\"\"<\/a>
 The 4\u201d line into the South Waipak\u016b kuleana \u02bbauwai. Credit: CWRM<\/sub><\/figcaption><\/figure>\n\n\n\n

\u201cThere\u2019s so much loss. The flow is low. The ditch hasn\u2019t seen water in 16-plus months. There\u2019s bound to be some normal saturation that needs to occur,\u201d he said.<\/p>\n\n\n\n

That goes for the lo\u2018i, as well. Although the water now reaches the first one, it\u2019s not enough to fill it, he added.<\/p>\n\n\n\n

Delays<\/strong><\/p>\n\n\n\n

\u201cThis really is going to be a short-term solution. We\u2019re not just reliant on Waikap\u016b Properties, but on Wailuku Water Company as well,\u201d Pellegrino said.<\/p>\n\n\n\n

Fixes to the delivery system can be expensive and right now, he said, Waikap\u016b Properties appears willing to take on that burden. However, the Hui\u2019s primary goal is to revive the traditional \u2018auwai that taps Waikap\u016b Stream directly.<\/p>\n\n\n\n

At the commission\u2019s meeting last month, the Alves family, which has a water use permit for 75,000 gallons a day to grow kalo ,complained in written testimony about WWC\u2019s apparent reticence to relinquish control over the stream water resources without certain conditions being met.<\/p>\n\n\n\n

\u201cOur lack of hope that the water allocations will actually be [upheld] has gone on long enough. Just when we thought the lo\u2018i would again feel river water and breathe back life, we encountered another roadblock. With urgency we ask that you make it clear to all parties that the release of water into the ready pipes will happen now and not later,\u201d the family wrote.<\/p>\n\n\n\n

Before the February meeting, Avery Chumbley, president of WWC, had stated in correspondence with Water Commission deputy director Kaleo Manuel that until there was a \u201cclear and documented understanding between all parties (CWRM, WWC, Waikap\u016b Properties, all kuleana users) as to who is responsible for possible ruptures, leaks or failures of the piping, WWC will not allow for the tie-in off of the filter station distribution point.\u201d<\/p>\n\n\n\n

In a later email to commission chair Suzanne Case, Chumbley stated that he had informed all of the parties involved that a functioning meter needed to be installed where Waikap\u016b Properties\u2019 8\u201d pipe ties in at a filter station \u201cprior to a delivery conversion to the pipe for the kuleana \u2018auwai users.\u201d A second meter needed to be on the 4\u201d line before the point where water use permit holder<\/p>\n\n\n\n

Clayton Suzuki receives water, he said. The difference in the amount of water flowing through the first meter and the second meter would be what Waikap\u016b Properties should be taking for itself, around 1,800 gallons a day under the decision and order.<\/p>\n\n\n\n

\u201cThese are obligations on the users under the D&O but not under our direct control of WWC and need to be complied with, as does the reported monthly usage by all permit holders off of this system,\u201d Chumbley wrote.<\/p>\n\n\n\n

At the February meeting, Chumbley repeated his argument that Waikap\u016b Properties needed to install a functioning meter at the 8\u201d pipe before it could take over delivering water to Suzuki and the kuleana users.<\/p>\n\n\n\n

Given that the commission had expressed support at its October 19 meeting for Waikap\u016b Properties\u2019s proposal to install a pipe to deliver water into the \u2018auwai, Commissioner Neil Hannahs asked Manuel why it was now being asked to amend the decision and order to reflect that.<\/p>\n\n\n\n

\u201cWhy does this have to come back to us again? It seems like it delays the solution. It seems like a ministerial matter,\u201d Hannahs said.<\/p>\n\n\n\n

\u201cOut of caution and reassurance,\u201d Manuel replied. He added that later in the meeting, the commission would be asked to delegate its authority to the chair to implement the commission\u2019s order, consistent with its intent.<\/p>\n\n\n\n

\u201cJust for clarity, we\u2019re bringing something more formal to the commission so all users understand what\u2019s expected of them in order to meet the intent of the commission,\u201d he said.<\/p>\n\n\n\n

\u201cThat\u2019s the nice way of putting it,\u201d chair Case added. \u201cWe think we have this authority and that you want us to do this, but to the extent anyone thinks it\u2019s not clear, we\u2019re bringing this back to finalize it and asking for delegation to make it crystal clear.\u201d<\/p>\n\n\n\n

To Chumbley, Case asked, \u201cWhat would stop us from ensuring that the pipe is turned on tomorrow or today?\u201d<\/p>\n\n\n\n

Chumbley argued that because the commission\u2019s decision and order requires permittees to report their water usage, an operational meter at the filter station would be important for reporting purposes.<\/p>\n\n\n\n

\u201cCommissioners can weigh in on this, but I\u2019m pretty sure everyone thinks it\u2019s more important to get the water going than measure it at this point,\u201d Case said.<\/p>\n\n\n\n

She added that WWC had up until recently been providing water from Waikap\u016b Stream to Kumu Farms, which is not authorized by the decision and order, and without it being measured by WWC. \u201cAnd now we\u2019re kind of arguing about not providing water to people who are authorized to have it until we\u2019re triple sure all the meters are working right?\u201d she said.<\/p>\n\n\n\n

Chumbley corrected her, \u201cThe water delivered to Kumu Farms was measured. It was being measured at a lower filter station.\u201d<\/p>\n\n\n\n

\u201cRight. It was measured, but not authorized, and so I\u2019m not clear why we are arguing over this and not providing water while arguing over it,\u201d she replied.<\/p>\n\n\n\n

After a few beats of silence she continued, \u201cI just want to make real sure that whatever the commission does today makes it really clear you turn on the water to the \u2018auwai today.\u201d<\/p>\n\n\n\n

The water was eventually turned on within a week, but to the Hui and the kuleana users, the whole process underscored the need to revive the traditional \u2018auwai.<\/p>\n\n\n\n

Goodbye, Middlemen<\/strong><\/p>\n\n\n\n

At last month\u2019s commission meeting, Pellegrino announced that the Hui, the Alves family, and kuleana permittee Crystal Smythe had sent a certified letter to Chumbley and his wife asking for access through their personal property, where the traditional \u2018auwai is located.<\/p>\n\n\n\n

They also asked the commission for its support and approval \u201cto allow access for the restoration of the historical and traditional South Waikap\u016b kuleana \u2018auwai not only as a means to be independent of Wailuku Water Co.\u2019s system, but because it is their traditional and customary and appurtenant right that according to the Water Code 174C, shall be upheld and protected by this very commission.\u201d<\/p>\n\n\n\n

The commission took no action on their request. And as of late last month, Chumbley had not responded to their letter, Pellegrino told Environment Hawai\u2018i<\/em>.<\/p>\n\n\n\n

Back in 2017, when the Hui, the Maui Tomorrow Foundation, and the Office of Hawaiian affairs filed their joint proposed findings of fact, conclusions of law, and decision and order in the N\u0101 Wai \u2018Eh\u0101 water use permit contested case hearing, they included a long section on access to kuleana water courses.<\/p>\n\n\n\n

They noted, \u201ckuleana in Waikap\u016b historically up until the late 1940s received water through an \u2018auwai system directly connected to Waikap\u016b Stream, but the plantation eventually redirected the \u2018auwai system to connect to the plantation\u2019s reservoir system instead.\u201d<\/p>\n\n\n\n

WWC and Hawaiian Commercial & Sugar \u201chave expressly and uniformly acknowledged and documented their obligations to satisfy kuleana rights in numerous written water agreements dating back almost a century. In the companies\u2019 original 1924 agreement dividing N\u0101 Wai \u2018Eh\u0101\u2019s stream flows, they expressly acknowledged that their diversions were \u2018subject to existing water rights of third parties therein,\u2019 including \u2018for all kuleana of such third parties,\u2019\u201d they wrote.<\/p>\n\n\n\n

According to Earthjustice attorney Isaac Moriwake, who represents the Hui and Maui Tomorrow Foundation, kuleana water delivery had also been raised in the contested case hearing on N\u0101 Wai \u2018Eh\u0101\u2019s interim instream flow standards, which preceded the contested case on water use permits.<\/p>\n\n\n\n

By 2017, \u201cwe had a solidly established record on this issue,\u201d he said.<\/p>\n\n\n\n

Whether or not Chumbley will allow access to the traditional \u2018auwai remains to be seen. When the issue came up during the commission\u2019s October meeting, he referred to the alleged traditional \u2018auwai use and alleged po\u2018owai on his property and claimed that the current topography wouldn\u2019t allow for its revival.<\/p>\n\n\n\n

If he maintains that position, a fight in court could follow.<\/p>\n\n\n\n

\u201cThis is new for our modern water rights legal framework,\u201d Moriwake said. Kuleana water access rights are \u201calready established in terms of the legal principle … but as far as the Water Commission goes, the Water Code, it hasn\u2019t come up in a litigation context where the commission has had to make a call yet. That\u2019s where we\u2019re potentially headed.\u201d<\/p>\n\n\n\n

\n\n\n\n

Commission Orders More Flow For Wailuku Town \u2018Auwai Users<\/h2>\n\n\n\n

Like Waikap\u016b, the case of the Wailuku Town kuleana \u2018auwai is also one in which kuleana kalo growers were not receiving the water they\u2019re entitled to under permits the Water Commission granted them last year.<\/p>\n\n\n\n

The commission\u2019s June 2021 decision and order in the N\u0101 Wai \u2018Eh\u0101 contested case requires Wailuku Water Company to deliver 88,000 gallons a day into the \u2018auwai, which serves four permittees.<\/p>\n\n\n\n

Since the commission issued the order, the three permittees at the end of the \u2018auwai had not been receiving enough water, or sometimes any water, for their kalo and other plants.<\/p>\n\n\n\n

Last month, Environment Hawai\u2018i <\/em>reported on the growing conflict between WWC president Avery Chumbley and <\/p>\n\n\n\n

Robert Street, who farms on property owned by permittee Jordanella Ciotti. Street, who has argued he is exercising his rights to access water for his kalo, has been opening the chained valve that WWC uses to control the delivery of water into the \u2018auwai. Chumbley has accused Street of trespassing and vandalism. Both turned to the Water Commission to help resolve the matter.<\/p>\n\n\n\n

Commission staff have said they need to better understand how much water is being lost as it travels along the \u2018auwai, which runs underground for some distance and is unlined elsewhere.<\/p>\n\n\n\n

On February 15, the commission voted to issue an interim water use permit to the three permittees at the end of the line: Ciotti, Mary Ann Velez, and Greg Ibara. The commission required them to modify the \u2018auwai to ensure that Ibara receives 50 percent of the water after Kalua Road, Velez 40 percent, and Ciotti the remaining 10 percent.<\/p>\n\n\n\n

The commission also ordered WWC to fully open the control valve where water enters the \u2018auwai at Waihe\u2018e Ditch and the valve near the first permittee on the \u2018auwai, Imua Family Services. This is where WWC controls the amount of water that flows through the rest of the \u2018auwai.<\/p>\n\n\n\n

The commission ordered the valves be immediately opened and to remain open up to 60 days to provide immediate relief to the permittees at the end of the \u2018auwai and to allow commission staff to assess system losses.<\/p>\n\n\n\n

WWC also must provide photos of its flowmeter at the distribution point for the pipeline, \u201cshowing a fully opened valve, estimated at not less than 500 [gallons per minute],\u201d according to a staff report. It also had to secure the 4\u201d control valve \u201cwith astrong, anti-theft lock to prevent tampering while the commission investigates system losses.\u201d<\/p>\n\n\n\n

Finally, the commission ordered Mahi Pono, LLC, to make improvements to Spreckels Ditch, which the \u2018auwai empties into, to remedy stagnant flow conditions.<\/p>\n\n\n\n

A commission staff report points out that the three permittees have recognized appurtenant rights totaling 347,100 gpd and Velez and Ciotti have additional domestic use rights totaling 1,964 gpd. In contrast, other water use permittees that are downstream of the \u2018auwai have reported no problems receiving their allocated amounts from WWC\u2019s Waihe\u2018e Ditch. All these permittees are commercial users, including Mahi Pono, Maui Tropical Plantation, MMK Maui, and Pohakulepo Recycling. Their total water allocations are close to 6 million gallons a day.<\/p>\n\n\n\n

The report also states that the high volume of water delivered to Mahi Pono may be a factor in water backing up into the Spreckels Ditch \u201cresulting in stagnant conditions makai of the Velez, Ciotti, and Ibara properties.\u201d<\/p>\n\n\n\n

Before the commission voted to approve its staff\u2019s recommendations on the interim permits and system loss investigation, WWC\u2019s Chumbley expressed his concern about opening the valves for a full 60 days with a minimum flow of 500 gallons perminute, which is what staff had originally recommended.<\/p>\n\n\n\n

\u201cThat\u2019s more than nine times the allocated amount,\u201d Chumbley said, He noted that except for a spike on January 12, flows in the Waihe\u2018e River, the source for WWC\u2019s Waihe\u2018e Ditch, have been low since the start of the year.<\/p>\n\n\n\n

A flow of 500 gpd through the \u2018auwai \u201ccould be considered waste,\u201d he said, adding that he was happy to work with staff on conducting seepage runs. \u201cWe don\u2019t need to do it 60 days. … Delivering that much water to this \u2018auwai is going to cause moreproblems,\u201d he said.<\/p>\n\n\n\n

Hui o N\u0101 Wai \u2018Eh\u0101\u2019s Pellegrino testified that problems with the Wailuku Town \u2018auwai are more complex than originally thought. Among other things, he said there are undisclosed, non-permitted users taking water from the system.<\/p>\n\n\n\n

With regard to whether or not the valves needed to be fully open for 60 days, Pellegrino reminded the commission that the system had been left dry for months. It\u2019s going to take a lot of water to saturate the ground, he said.<\/p>\n\n\n\n

Based on the public testimony, commissioner Hannahs recommended that the staff\u2019s recommendation be amended to require that the valves be open up to 60 days. \u201cWe don\u2019t want to waste water,\u201d he said. He also recommended changes to the staff\u2019s recommendation on fixes to the Spreckels Ditch to be more general.<\/p>\n\n\n\n

The commission approved both recommendations.<\/p>\n\n\n\n

Authority Delegation<\/strong><\/p>\n\n\n\n

To facilitate the timely resolution of problems surrounding the Water Commission\u2019s June 2021 decision and order in the N\u0101 Wai \u2018Eh\u0101 contested case hearing, commission staff recommended last month that the commission delegate its authority to the chair to implement and\/or modify the order.<\/p>\n\n\n\n

Although parties to the contested case hearing have appealed the D&O to the state Supreme Court, the order \u201chas not been stayed and as appropriate can be implemented and modified by the commission,\u201d a February 15 staff report states.<\/p>\n\n\n\n

WWC\u2019s Chumbley testified that he did not think this was necessary. His attorney, James Geiger, suggested the commission consider removing the authority to modify the order.<\/p>\n\n\n\n

The commission voted to approve its staff\u2019s recommendation as submitted.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Teresa Dawson On February 15, the state Commission on Water Resource Management amended its June 2021 decision in the Nā Wai `Ehā contested case hearing on water use permits. The change means that Waikapū Properties now is responsible for … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14299,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[494,28],"tags":[3],"class_list":["post-14298","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-march-2022","category-water","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14298","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=14298"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14298\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14299"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14298"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14298"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14298"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}