\u201cWhen you\u2019re talking about the aquatic species that need water to migrate up stream, if the stream is dry, obviously they\u2019re not going to be able to migrate,\u201d said Steve Gingerich, a scientist with the U.S. Geological Survey who on June 15 presented to the state Commission on Water Resource Manage ment results from his agency\u2019s three-year study of East Maui streams and their fauna.<\/p>\n
What the USGS has found does not bode well for the fish, snails and shrimp living in many of those streams. Gingerich told the commission that on average, only 20 to 30 percent of the water in diverted East Maui streams makes it past the diversions that are part of the East Maui Irrigation Co.\u2019s vast system of ditches supplying water to Central Maui sugar fields.<\/p>\n
In west Wailuaiki stream, for example, water flows over a diversion 28 percent of the time.<\/p>\n
\u201cThe rest of the time it\u2019s dry immediately below\u201d the diversion, he told the commission, \u201cbut may gain water downstream.\u201d<\/p>\n
The studies (done in cooperation with CWRM, the Maui Board of Water Supply, the state Board of Land and Natural Re sources, and ditch owner and operator EMI) were initiated in response to petitions filed by East Maui native Hawaiians and taro farmers seeking the return of water to East Maui streams that have been diverted for more than a century by the elaborate EMI system.<\/p>\n
With the results of these studies, the Water Commission hopes to set instream flow standards that will adequately protect the public trust uses and resources of streams, including fish and wildlife habitat and valuable ecosystems.<\/p>\n
Gingerich found that some streams are severely impacted by the irrigation system. At Waikamoi, he said, there is a 93 percent reduction in flow from the diversion. And at Honomanu, the streams are basically dry from the diversion point down to the coast, a \u201c100 percent impact,\u201d Gingerich said.<\/p>\n
Some streams do pick up water below the diversions. At Hanawi stream, for example, there are significant spring contribu tions, producing more water than is being diverted upstream, he said.<\/p>\n
Now that he has an idea of how the diversions are affecting stream flow, Gingerich is trying to determine how the return of water will affect the creatures living there, such as the hihiwai or \u2018o\u2018opu. Gingerich studied several representative streams and three reaches in each, looking at fauna above the diversion, at mid-eleva-tions, and at the coast.<\/p>\n
\u201cAll species… pretty much track the same regarding their response to more water,\u201d he said; in other words, the more water, the better. The more important point to find, he said, is, \u201cWhere do you stop gaining additional habitat by gaining additional water?\u201d<\/p>\n
For each East Maui stream, Gingerich is preparing charts plotting how much habitat increases with each additional cubic feet per second of increased stream flow.<\/p>\n
Public Trust Precedents<\/strong><\/em> While the Hawai\u2018i Supreme Court clari fied how the state is to go about protecting public trust resources in its landmark deci sion on the Waiahole Ditch case, the state has been struggling to put the court\u2019s words into action. Gingerich\u2019s work is one step in that direction.<\/p>\n And on April 20, Joseph Sax, a law professor at the University of Califor nia at Berkeley, visiting professor at the University of Hawai\u2018i law school, and the \u201cgodfather\u201d of environmental and water law, spoke to the Water Commission on the Mono Lake case, itself a legal landmark involving public trust issues, in hopes it would provide some insight into how to the commission might manage its water.<\/p>\n \u201cIn trying to think about what to say that might be of some use to you, it struck me that in the area of public trust, the leading case is your own Waiahole case and the so-called Mono Lake case in California \u2013 a National Audubon case that is well-known, has been much-studied and much written about,\u201d Sax told the commissioners. He continued:<\/p>\n \u201cOne of the things much less well known outside a very small circle is how the admin istrative agencies that actually have a re sponsibility to implement the trust, after the courts make their decisions \u2014 how they actually work. I thought it might be of some interest to you if I gave you a summary report on the actual implementation pro cess of the Mono Lake decision by our parallel agency, which is the state Water Resources Control Board\u2026<\/p>\n \u201cLet me just give you a very brief re fresher about what as going on in the Mono Lake case, although I\u2019m sure the case is well-known to all of you. There was a water supply project that the city of Los Angeles started many, many years ago on the east side of the Sierras, the Owens Valley project\u2026 Los Angeles, unlike many places, was very forward-looking in terms of the needs it would have in the future and devel oped this high quality supply of water, which they brought down on the east side using gravity flow and also producing hy dropower.<\/p>\n \u201cIt was a very successful, although ex tremely controversial project from the per spective of people who lived up there.<\/p>\n \u201cMono Lake is really an extension of the Owens Valley project. Mono Lake is on the east side of the Sierras, just east of Yosemite National Park, north of the Owens Valley project. So what Los Angeles decided to do to supplement the water supply and, again, look toward to future, was to go to the streams that fed Mono Lake coming down off the east side of the mountains, and capture the water out of those streams, bring it down into the Owens Valley, and on to Los Angeles.<\/p>\n \u201cThe project began in 1940 and shortly thereafter the city started taking water, not in very great amounts. By 1970, they had increased their use of the Mono Lake facil ity to about 83,000 acre-feet a year. They had a permit, which permitted them to go as high as 147,000 acre-feet. It was as a result of this increase to the 80,000 acre-feet area that generated the National Audubon liti gation.<\/p>\n \u201cWhat had happened was the lake, which had been declining slowly … started going down rather rapidly. This had several ad verse impacts: One, there were islands in the middle of the lake that were nesting area for California gulls. But as the lake level went down, land bridges between these islands and the mainland were created and predators came and started eating the gull eggs\u2026<\/p>\n \u201cIt was also having an impact on some of the resources in the lake that fed some of the bird populations \u2014 brine shrimp, for ex ample. It was having an adverse impact on the wetlands around the lake and also hav ing an adverse impact on the fish that had been in these feeder streams. And that was what generated the lawsuit.<\/p>\n \u201cLos Angeles took the position in the court that it was entitled to continue its diversions because their use was \u2018reasonable and beneficial\u2019 \u2013 a term we have in our state constitution \u2013 and it was providing potable water to one of the nation\u2019s greatest cities, and environmental harm should be viewed as an unfortunate but necessary conse quence. Indeed, they argued that their use was itself a public trust use and that what ever the consequences, it couldn\u2019t be bumped in favor of other public trust uses.<\/p>\n \u201cWell, \u2026 the court said that the public trust doctrine was designed to protect gen eral public use: navigation, recreation, en vironmental protection of fish and wildlife, and is separate from other kinds of benefi cial uses: irrigation, municipal water sup ply, industrial use, and so forth.<\/p>\n \u201cTheir holding in the case was that every state agency that deals with a public trust resource must make an effort first to protect the public trust resources to the extent that it\u2019s feasible in light of other kinds of com peting uses. And that was their language: to protect the public trust where feasible.<\/p>\n \u201cSo that is where the story of administra tive implementation begins. What the board did was say that the first thing to do is look to technical expertise to try to deter mine, as a purely technical matter, what would have to be done to return the Mono Lake system to a condition like that, not identical, but like that prior to the com mencement of L.A.\u2019s diversions, and what would be needed to protect those resources [shrimp, fish, etc.] in a healthy condition.<\/p>\n \u201cThat was building block number one, to get that information. When the project started back in 1940, the elevation of the lake \u2026 was at 6470 feet. By the time the court decision came down, the lake had declined 45 feet, to 6377.<\/p>\n \u201cThe technical information the board got indicated that they could get the lake back up to 6392, that is an increase of about 15 feet in elevation. That would be suffi cient to isolate these gull islands, it would repopulate the feeder streams, it would provide for healthy biota in the lake, and it would significantly, but not totally, restore the wetlands.<\/p>\n \u201cSo the questions before the board be came one of, first, whether 6392 would be adequate even though it was not restoration to pristine conditions.<\/p>\n \u201cAnd then, assuming the answer to that was yes, they would then turn to look at what the impacts on Los Angeles would be, and what would then happen. Because Los Angeles would be losing a significant amount of their water supply. It was at that point that they turned to the question of feasibility.<\/p>\n \u201cThe board decided that this 6392 level would be adequate to meet the public trust. It said that, with the exception of the wet lands, if they could return to that level, it would provide viable, healthy populations of everything else. It seemed to them rea sonable to accept a modest reduction in the quantity of wetlands, a 15 percent reduc tion, although they did consider some miti gation to try to improve some degraded wetlands.<\/p>\n \u201cI should have said that before this ad ministrative process started, the court had enjoined Los Angeles from taking any wa ter… It turned out to be kind of a good thing because it created pressure on the board to get the job done as expeditiously as possible and with the notion that this was some thing that shouldn\u2019t go on forever. I\u2019m sure you know some public trust cases have the tendency to become quite long.<\/p>\n \u201cIn any event, what they then did was propose what we call under California law \u2018physical solutions.\u2019 That is, a plan of ac tion. The plan of action was at first, Los Angeles would be allowed to divert 12,000 acre feet a year \u2026 until the lake rose to the desired goal, 6292. That is supposed to happen eight or nine years from now\u2026<\/p>\n \u201cOnce it gets to 6292, [Los Angeles] would then be allowed to divert 31,000 acre-feet. They would get permanent re duction of about 60 percent of the water they had been taking. This was not a 100 percent victory for the environmental forces. It set up a kind of notion of what, in light of this transition from water being used en tirely for traditional kinds of purposes to protection of environmental resources, what it would look like \u2013 not to return to the state of nature, not to return to pristine conditions\u2026but if it was possible, to help the populations [of wildlife]\u2026 they then turned to the question of feasibility.<\/p>\n \u201cWhat does it mean to talk about feasi bility in the context of a city like Los Ange les? They do whatever they have to do, in one sense. On the other hand, it seems that having to make this adaptation is going to be something that is very expensive\u2026.<\/p>\n \u201cOne of the things that was very interest ing in this case, one of the most interesting features, is the environmental community, Audubon \u2026 was very sensitive to this prob lem of, what if we improve Mono Lake and Los Angeles goes and wrecks someplace else? That isn\u2019t going to be very good. So they were very much involved\u2026<\/p>\n \u201cThe case finally got to a kind of settle ment mode. Los Angeles … just didn\u2019t want to go on for decades in the courts. The time had come try to sit down at the table and try to get this thing worked out and save as much as they could.<\/p>\n \u201cSo the board asked three questions: How much water is Los Angeles going to have to give up? It was about 50,000 acre-feet a year. Is there a replenishment supply available and if so what it is? And how much is this going to cost?<\/p>\n \u201cThey came to the conclusion that the total cost, over the long run, permanently, would be about $23 million a year for Los Angeles or about $10\/person\/year. (Because of LA\u2019s rate structure \u2026 costs would not fall equally on the rich and the poor.) They came to the conclusion that $23 million was feasible in terms of Los Angeles.<\/p>\n \u201cThe next question was, Who\u2019s going to pay for this and what\u2019s going to happen? And that\u2019s why I mentioned the involve ment of Audubon in the remedy side of this. Los Angeles made a very strong argu ment that this was not just their problem, that this was a benefit that was being pro duced for all people of California. The general public of California ought to share some of this because\u2026it isn\u2019t as if [the city] had done some bad thing. Everybody agreed that what they were doing was a good thing. They needed water for potable purposes.<\/p>\n \u201cThey and Audubon together went to the Legislature and made a very interesting deal. The deal was: give us some money (it turned out to be $60 million) to help Los Angeles. But this money is to be available only if an environmentally acceptable sub stitute is used. What that turned out to be was a Los Angeles Institute of Water Con servation program [which is] trying to get people to use less water for lawn watering, get away from exotic grasses, use low-flow toilets, and so on.<\/p>\n \u201cThe federal government also put up some money for a wastewater reclamation program. Audubon was very happy with both of those. That was the kind of thing they wanted.<\/p>\n \u201cAnd that finally brought the case to a conclusion. The conservation program has actually been quite successful\u2026 It reduced per capita use by close to 20 percent, a significant reduction.<\/p>\n \u201cWith the people of Los Angeles, the people of California, and some money out of the Bureau of Reclamation [came] a solution that was positive for Mono Lake and positive in terms of burdens on other resources. I think, in a sense, it empowered the board to feel that they could do this, that it wasn\u2019t one of these impossible jobs, wasn\u2019t a zero-sum game where the enviros are going to get everything, other people are going to get nothing, or vice versa.<\/p>\n \u201cI\u2019m not the greatest fan of the state Water Control Board\u2026but I think in this area, they\u2019ve done it. They\u2019ve shouldered the burden. They have a public trust ele ment in all their water resource manage ment review processes and they have been reasonably innovative in looking for inter esting, modern adaptive ways to deal [with conflicts].<\/p>\n \u201cYou have to deal with other very diffi cult problems and what they do doesn\u2019t exactly make sense for you, but I think it is an interesting kind of model and I would suggest you might want to make contact with those folks and see what they\u2019re doing in a more detailed way.\u201d<\/p>\n — Teresa Dawson<\/p>\n Volume 16, Number 2 August 2005<\/p>\n","protected":false},"excerpt":{"rendered":" “When you’re talking about the aquatic species that need water to migrate up stream, if the stream is dry, obviously they’re not going to be able to migrate,” said Steve Gingerich, a scientist with the U.S. Geological Survey who on … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[133,28],"tags":[3],"class_list":["post-1485","post","type-post","status-publish","format-standard","hentry","category-august-2005","category-water","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1485","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=1485"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1485\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1485"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1485"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1485"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nFish generally benefit from more water in streams, but when water is being used for various economically important purposes, how much should the welfare of fish count? That, in a nutshell, is the nature of the questions that the Water Commission faces in East Maui and elsewhere: How much water is needed to protect ecosystems? How much can other users afford to give up? How much will reallocation cost?<\/p>\n