The October meeting was not the first time the OWC faced allegations of violating the Water Code. On May 15, 2018, the commission fined the company $1,000, plus $500 in administrative fees, for building a 30-foot long, 12-foot wide concrete dam\/spillway in the stream and diverting two million gallons a day without authorization.<\/p>\n\n\n\n The commission also required OWC to submit a remediation plan within six months that would include the installation of an animal access channel and the alteration of the intake sluice gates \u201cto prioritize water flow to the stream.\u201d<\/p>\n\n\n\n After a June site visit with staff from the commission and the state Division of Aquatic Resources, OWC submitted a remediation plan on August 9, 2018, which was slightly revised the following month.<\/p>\n\n\n\n Staff gave OWC six months, starting in July 2018, to complete the work.<\/p>\n\n\n\n \u201cStaff considers the period from January 2019 to the present to be the enforcement period,\u201d the October 18 staff submittal states.<\/p>\n\n\n\n Using stream gaging data, staff found that between January 1, 2019 and March 29, 2022, \u201cthere were at least 548 days (46.3%) where the mean daily flow on Olowalu Stream, measured below Diversion 961 at the Lower Olowalu Ditch, violated the interim IFS. This occurred while OWC continued to divert water for non-public trust uses,\u201d staff states.<\/p>\n\n\n\n OWC diverted as much as 454,000 gallons a day, despite the IIFS not being met. Staff noted that OWC has been inconsistent, at best, in reporting to the commission the amount of water it diverts.<\/p>\n\n\n\n “Commission staff have requested that the streamflow diverted by Diversion 961 be reported in a timely manner. From 2019 to 2020, OWC failed to report diverted flow for 16 months. Since October 2021, OWC has failed to report a single value for diverted flow,\u201d staff wrote.<\/p>\n\n\n\n On April 12, staff issued OWC a notice of alleged violation regarding its failure to meet the IIFS.<\/p>\n\n\n\n OWC replied on May 27 that it believed that the commission\u2019s March 2018 decision regarding the IIFS allowed the company to divert up to 273,000 gallons per day and still meet the IIFS for Olowalu of 2.33 million gallons a day. This, despite the fact that the March 2018 staff report stated, \u201cThis interim IFS allows Olowalu Water Company to meet their 0.196 mgd agricultural water demand and 0.141 mgd landscaping water demand at least 50-percent of the time<\/strong> (emphasis added).\u201d<\/p>\n\n\n\n During a July 2022 site visit with OWC and commission staff, \u201cmodifications to the diversion intake were again discussed, real-time monitoring of the Lower Olowalu Ditch and streamflow were discussed, and alternative sources of water were discussed. During the site visit, the obvious points of leakage were identified in the system that should be resolved. Since that site visit, no improvements have been made. \u2026<\/p>\n\n\n\n \u201cBased on the monitoring data, if OWC had not diverted volumes in excess of their need, they would have met the interim IFS more regularly,\u201d staff wrote.<\/p>\n\n\n\n Under the Water Code, the commission may impose fines of up to $5,000 a day for IIFS violations. Staff chose to start its fine calculations using the minimum fine under the commission\u2019s penalty policy, $250 a day. <\/p>\n\n\n\n For 553 days of not meeting the IIFS, 4 days of not meeting the IIFS after the commission had designated West Maui as a Water Management Area, and 553 days of repeat violations, staff came up with a minimum penalty of $277,500. <\/p>\n\n\n\n That fine grew with the commission\u2019s addition of a \u201cgravity component.\u201d Because of the risk the violations posed to the resources and because OWC refused to correct the violations after being noticed, staff recommended another $163,250 in fines. It also recommended a fine of $500 for administrative costs.<\/p>\n\n\n\n Staff chose not to apply a mitigative component that could have reduced the fines. \u201cCommission staff recognize that more timely and regular communication to the diversion operator about interim IFS violations could have potentially reduced the violations. However, implementing the modifications to the intake suggested by Commission staff at the June 2018 site visit would have eliminated any potential violation,\u201d staff stated.<\/p>\n\n\n\n CWRM hydrologist Ayron Strauch told the commission last month that the intake modification aimed at ensuring the IIFS amount remains in the stream was still undone, and the low flow channel OWC constructed to meet the May 2018 commission order \u201cdoes not provide any connectivity across the dam during extreme low flow conditions.\u201d<\/p>\n\n\n\n In early October, OWC proposed a settlement that would have required the company to complete many of the modifications it was already required to make. Staff rejected the offer. <\/p>\n\n\n\n “Everything they were proposing to do they were already required to do,\u201d Strauch explained, adding that there is language in the Water Code that prevents the commission from settling \u201cif they\u2019re required to do it anyway.\u201d<\/p>\n\n\n\n Commissioner Paul Meyer asked about the basis for such a large proposed fine and how it compared to other enforcement cases.<\/p>\n\n\n\n Commission deputy director Kaleo Manuel agreed that the fines in this case were hefty, but said they could have been a lot more. He said the fine was determined after conversations with staff. He said that the opportunities provided to OWC to meet the IIFS have gone unrecognized.<\/p>\n\n\n\n \u201cStaff is recommending fines to showing the severity of our responsibility,\u201d he said.<\/p>\n\n\n\n \u201cPlease don\u2019t interpret my question as looking for lightening or amending these recommendations. Your points are very well taken and well made and on solid ground,\u201d Meyer said.<\/p>\n\n\n\n Commission chair Suzanne Case added that there is precedent for levying large fines and that those fines have been paid.<\/p>\n\n\n\n Commissioner Neil Hannahs said that he was working for Kamehameha Schools when it \u201creceived a fine commensurate to this amount. We worked that out. It certainly got our attention. It hints that\u2019s what we\u2019re trying to accomplish here: What will it take to get someone\u2019s attention? \u2026 It\u2019s an important enforcement tool. At this level, I think it\u2019s going to get some attention. Hopefully it\u2019ll get some reconciliation that\u2019s on the ground.\u201d<\/p>\n\n\n\n \u2018Lame Excuses\u2019<\/em><\/strong><\/p>\n\n\n\n When it came time for OWC to testify, its attorneys Darene Mastuoka and Cal Chipchase were present, as was the company\u2019s Steve Miller.<\/p>\n\n\n\n Chipchase immediately took the blame for the settlement proposal. \u201cI thought I was being responsive. It\u2019s on me for misunderstanding what was wanted in a proposal from us,\u201d he said. <\/p>\n\n\n\n He indicated he and Matsuoka, who also represented Moloka\u02bbi Properties in an earlier agenda item that day, (see cover story), had not been working on the OWC case very long, \u201ceven less time than we\u2019ve been on the Moloka\u02bbi Ranch stuff. You inherit some history with that. I do want to assure commission, as we\u2019ve been working with OWC, our full intent to come into compliance.\u201d He said there had been some work in the last couple of weeks on the dam leak staff had identified.<\/p>\n\n\n\n “While the road to getting to compliance has been slower than it should have been it\u2019s not because of an un unwillingness or indifference to doing that,\u201d he said.<\/p>\n\n\n\n <\/strong>He asked that the commission defer the matter for 30 days because they had only received the staff\u2019s report on Saturday, three days before the meeting.<\/p>\n\n\n\n \u201cWe haven\u2019t had an opportunity to see if an amicable solution can he reached accepting some level of responsibility [and] working with staff to achieve the main goal of compliance moving forward, rather than bankrupting a small purveyor that has 60 customers,\u201d he said.<\/p>\n\n\n\n Buck asked Chipchase to describe what happened between May 2018 and October 2022 with regard to the system modifications.<\/p>\n\n\n\n \u201cI can\u2019t speak to that whole history. \u2026 I\u2019ve only been involved somewhat less than the period since the NOV,\u201d Chipchase replied. He confessed that based on what he had been able to assess, OWC was, at worst, guilty of negligence, \u201cnot understanding what the situation was, what was needed to be in compliance.\u201d <\/p>\n\n\n\n He said that while he did not want to point fingers at commission staff, he believed OWC would have begun fixing the problems sooner if there had been more dialogue with staff earlier. (It should be noted that five of the IIFS violations occurred AFTER the NOV.)<\/p>\n\n\n\n \u201cWe all bear responsibility,\u201d he said. <\/p>\n\n\n\n OWC\u2019s Miller also plead ignorance to what happened over the past few years, since he had only been with the company for a little more than a year.<\/p>\n\n\n\n Miller said the company lost Dave Minami, who had managed the diversion system for more than 20 years. He added that new staff is learning system and all of the company\u2019s time and attention has been on meeting the IIFS for Kaua\u02bbula Stream. That IIFS was also set in March 2018.<\/p>\n\n\n\n \u201cThere hasn\u2019t been a lot of attention on the Olowalu Diversion. It\u2019s not intentional. It may be negligence, but definitely not something our company has been trying to get away with, getting more water for our 50 users,\u201d he said.<\/p>\n\n\n\n If the commission deferred the matter, he said more work could be done on getting more specifics on what happened between 2018 and 2022.<\/p>\n\n\n\n Case seemed more concerned with what OWC could do in those 30 days to ensure it meets the IIFS.<\/p>\n\n\n\n Strauch said that back in 2018, the OWC and commission staff discussed a plan to modify the diversion so that the company would not have to worry about meeting the IIFS. <\/p>\n\n\n\n \u201cAfter six months, something got shoved aside and that plan never got implemented. I can\u2019t speak to why the operator did not make necessary modifications they agreed to make,\u201d he said.<\/p>\n\n\n\n \u201cThe modifications wouldn\u2019t take very much,\u201d he continued. \u201cAll that needs to happen is, lower the sluice gate and open a window at the water level so only higher flows go into the ditch and low flows stay in the stream.\u201d<\/p>\n\n\n\n \u201cIt doesn\u2019t take an engineering degree to figure that out,\u201d Strauch said.<\/p>\n\n\n\n Miller said that is absolutely something OWC can work on.<\/p>\n\n\n\n Hannahs asked about eliminating the leakage below the dam that staff had identified back in May 2018. <\/p>\n\n\n\n Chipchase said that according to OWC\u2019s operations people, that had been corrected weeks ago. <\/p>\n\n\n\n Tiare Lawrence, a founding member of the non-profit Kamalu o Kahalewai who had documented OWC\u2019s violations, was not swayed by what she called the \u201clame excuses from counsel.\u201d <\/p>\n\n\n\n She asked the commission to impose the fine as recommended by staff.<\/p>\n\n\n\n \u201cPeter Martin and his companies need to be reminded that they do not own the water,\u201d she said, referring to OWC\u2019s owner, who also owns the Launiupoko Irrigation Company.<\/p>\n\n\n\n Moloka\u02bbi\u2019s Teave Heen, who had testified earlier in the meeting on the failure of the water diverter there to restore East Kawela Stream, also supported the full fine. <\/p>\n\n\n\n \u201cI see how much effort goes into [adopting] IIFS and see how easily they can be violated and see how easily those violations can be excused. \u2026 Our state Water Code needs to be taken a little more seriously,\u201d she said.<\/p>\n\n\n\n \u2018Really Frustrating\u2019<\/strong><\/p>\n\n\n\n Commissioner Aurora Kagawa-Viviani asked staff how many exchanges it had with OWC over the years-long enforcement period.<\/p>\n\n\n\n Strauch said he didn\u2019t have a documentation of the number of exchanges, but said that he would run into OWC staff in the field and talk about how much water was flowing. Before Minami left OWC, Strauch said he would talk to him maybe quarterly about system operations. \u201cSometime in 2019, somebody decided it was not critical to make the changes,\u201d he said.<\/p>\n\n\n\n \u201cHow many official notices were exchanged?\u201d Kagawa-Viviani asked.<\/p>\n\n\n\n Manuel referred to the documentation in the staff submittal. He went on lament those diverters who, through their own negligence, don\u2019t know what\u2019s going on.<\/p>\n\n\n\n \u201cHow do we get water users to be better water stewards? That\u2019s the challenge that we\u2019re having here. We set systems and policies in place that are blatantly ignored or disregarded. The order in 2018 made it very clear it\u2019s the obligation of diverter, not the staff to chase after them. \u2026 The burden is not on us,\u201d he said.<\/p>\n\n\n\n “To be honest, it\u2019s really frustrating working and supporting staff to do this work and have private companies come up with reasons why they cannot meet their obligation. We tried to communicate with them. Nothing stopped them from making these improvements. \u2026 While the response is they just had the submittal to review since Saturday, nothing prevented them from making the improvements. \u2026<\/p>\n\n\n\n \u201cThis commission has an opportunity to really help shape behavior. \u2026 I stand here really supporting staff who are really trying to do their work. I do not recommend deferral. It\u2019s not going to benefit anybody. We need to get action and get things done. Waiting 30 days to get improvements done that were delayed for four years is really frustrating,\u201d he continued.<\/p>\n\n\n\n Strauch also countered Chipchase\u2019s claim that the leaks had been fixed. \u201cOur last site visit was October 7, 11 days ago. The three points of leakage were still leaking,\u201d Strauch said.<\/p>\n\n\n\n Despite Manuel\u2019s plea, Buck suggested that the commission defer the matter for 30 days. \u201cLet\u2019s see what the company can do in 30 days. Hold the level of the fine the way it is. We might end up with a better solution. I am lukewarm on that recommendation, but I think it\u2019s important that the commission at least have a discussions on that. I don\u2019t think we should reward being completely negligent on the water code,\u201d he said.<\/p>\n\n\n\n <\/strong>Commissioner Hannahs said he had some empathy for Chipchase, Matsuoka, and Miller because they were new to the situation. However, he added, OWC is not new. <\/p>\n\n\n\n \u201cThere is a willfulness about the negligence \u2026 that weighs in terms of the gravity of the fine,\u201d he said.<\/p>\n\n\n\n Commissioner Kagawa-Viviani expressed her concern that after the 30 days, OWC may still request a contested case hearing on any fines.<\/p>\n\n\n\n <\/strong>Given that, Buck asked Meyer for his thoughts on what message the commission was sending if it voted to defer.<\/p>\n\n\n\n Meyer seemed committed to imposing some kind of fine.<\/p>\n\n\n\n \u201cI am very very much supportive of the rule and regulations this commission has. I don\u2019t think we have to back off or modify any of those. The resource is too important,\u201d he said, warning that a lack of enforcement could \u201cend up like another Red Hill,\u201d a case in which the U.S. Navy severely contaminated public drinking water sources.<\/p>\n\n\n\n He said he supported staff\u2019s recommendations and was uneasy putting them off for a month, but it might be worth it if it gets improvements made immediately.<\/p>\n\n\n\n He seconded Buck\u2019s motion to defer for 30 days. The motion passed unanimously.<\/p>\n\n\n\n Manuel said that staff would return with recommendations that may or may not include amendments.<\/p>\n\n\n\n \u2014 Teresa Dawson<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" “I almost can’t believe I’m going to say this,” said commissioner Mike Buck before moving to defer taking action on alleged violations of the interim instream flow standard (IIFS) for Olowalu Stream in West Maui. At the commission’s October 18 … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14718,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[503,28],"tags":[3],"class_list":["post-14717","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-november-2022","category-water","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14717","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=14717"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14717\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14718"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14717"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14717"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14717"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}![\"\"](\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2022\/11\/E1A5E903-A7E3-451E-B37B-ED42E78E9E91.jpeg\")
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