It\u2019s a familiar tale: A small group of diversified farmers demands that stream water continue to be diverted into an old, leaky sugar irrigation system, despite the fact that neither they, nor the state, can afford to fix or maintain it. In the meantime, millions of gallons of water are wasted every day, and little or no thought is given to appurtenant or riparian rights or stream restoration until someone makes a stink.<\/p>\n
Last month, a proposed 65-year lease of water rights to the Kaua\u2018i Island Utility Cooperative for two hydropower plants and a rent reduction request by the East Kaua\u2018i Water Users Cooperative for use of some of the same water raised concerns among the Native Hawaiian and environmental communities over the Department of Land and Natural Resources\u2019 treatment of streams and the water that feeds them.<\/p>\n
Board of Land and Natural Resources member Tim Johns recused himself from both items because he is a board member of Lihu\u2018e Land Company, which receives money from the coop to maintain that portion of the East Kaua\u2018i Irrigation System ditch running through the company\u2019s land.<\/p>\n
At the Land Board\u2019s December meeting, the DLNR\u2019s Land Division proposed the sale of a lease at public action for the right to use the state\u2019s Blue Hole diversion and portions of a ditch within the Lihu\u2018e-Koloa Forest Re serve for hydropower generation. KIUC is the only operator of hydroelectric generators that uses water from the Blue Hole diversion and would likely be the only applicant for the water.<\/p>\n
Between 1965 and 1995, the East Kaua\u2018i Water Company, an affiliate of Lihu\u2018e Plantation, had a lease to divert the water. With the closing of Lihu\u2018e Plantation, the hydroelectric generators were sold by the plantation\u2019s parent company, AMFAC, to KIUC. KIUC has had a revocable permit to use the water for its plants since December 2002. In April 2004, the Legislature adopted a concurrent resolution calling for the continued use of this water for the hydros, which generate a total of 1.3 megawatts.<\/p>\n
KIUC\u2019s Alton Miyamoto told the Land Board in December that, \u201cto upgrade this system, we need water available in the long term.\u201d KIUC claims that running the water through the hydros is a nonconsumptive and nonpolluting use. And as it is an existing use, there is no need for an environmental assessment, a DLNR report stated. Granting a lease, Miyamoto said, would help KIUC meet the state\u2019s renewable energy portfolio requirements.<\/p>\n
Initial objections to the proposed lease came from the Department of Hawaiian Home Lands, which argued that a watershed management plan and a reservation of water for future DHHL developments would need to be made before any lease was auctioned. But at the December meeting, Land Division administrator Dierdre Mamiya told the Land Board that DHHL had since decided to work with the KIUC to resolve the agency\u2019s concerns.<\/p>\n
The Office of Hawaiian Affairs, on the other hand, was not ready to support the lease. In a December 9 letter to board chair Peter Young, OHA\u2019s Clyde Namu\u2018o wrote that the Land Division\u2019s report \u201cseriously errs in concluding the use is nonconsumptive, and this error means the Board\u2019s decision is improperly informed as to the impacts of the decision.\u201d<\/p>\n
Namu\u2018o noted that the staff\u2019s report did not include a description of the diversions or the return points. \u201cBased on information from the staff submittal \u2026 we understand that the water is diverted from the North Fork of the Wailua River, run through the hydro power plants, and run into the South Fork. If that is the case, then the diversion clearly affects the amount of water in \u2018the stream,\u2019 in this case the North Fork of the Wailua River. Hence, the use would be consumptive under law.\u201d<\/p>\n
Namu\u2018o added that the Land Division offered no evidence that running water through the hydros did not change the volume or quality of the water and that all plantation systems \u201chave significant system losses due to leakage and other factors.\u201d<\/p>\n
Namu\u2018o then took issue with the DLNR\u2019s conclusion that administrative rules exempt the hydros from an environmental assess ment or impact statement because they are an existing use. \u201cIn light of the fact that the sale of this lease will enable a major diversion of some of Hawai\u2018i\u2019s most significant streams forth next 65 years, it would seem clear that this kind of project is precisely the kind of activity that the [state\u2019s environmental review] law was intended to encompass,\u201d Namu\u2018o wrote, citing a ruling by state Supreme Court Justice Eden Elizabeth Hifo that the Land Board\u2019s proposal to grant a 30 year lease to allow East Maui Irrigation\/ Alexander & Baldwin to divert water from 33,000 acres of state land, \u201cas a matter of law, does not constitute a minimal or no significant effect on the environment.\u201d<\/p>\n
The fact that seven years passed between the expiration of East Kaua\u2018i Irrigation Company\u2019s water lease and KIUC\u2019s revocable permits also raised the issue of whether the KIUC\u2019s use of the hydros is indeed an existing one.<\/p>\n
Finally, Namu\u2018o wrote, \u201cjust because this issue is appearing before the Board and not the State Commission on Water Resource Management, that does not exempt the Board or the applicant from meeting the requirements of the public trust doctrine on users and trustees of public trust resources, including water. Nor is the Board exempt from the requirements of protecting traditional and customary Hawaiian rights that are affected by actions it takes.\u201d<\/p>\n
In written testimony, Kaua\u2018i resident Carol Wilcox pushed for stream protection, stating, \u201cIt would seem that this is the appropriate time to confer with U.S. Fish and Wildlife Service, Division of Aquatic Resources and Division of Water Resource Management to establish appropriate instream flows at the diversions, as required by the State Water Code. These conservation flows should be conditions of the lease.\u201d<\/p>\n
While Namu\u2018o\u2019s letter merely requested a deferral until OHA\u2019s objections were resolved, at the December meeting, OHA policy ana lyst Dr. Jonathan Scheuer requested a con tested case hearing. After an executive session with its attorney, the Land Board tried to halt all further testimony on the issue. Deputy Attorney General Bill Wynhoff advised the board that once a contested case hearing is requested, the matter \u201cgoes from a quasi-legislative to a quasi-judicial mode\u201d and the board must immediately terminate any pub lic discussion or testimony.<\/p>\n
Native Hawaiian Legal Corporation attorney Moses Haia, who had been waiting to testify on the item, advised the board, \u201cIf that\u2019s how the board intends to do business, there should be a precautionary note at the beginning of the meeting that if you request a contested case, it will close the public hearing.\u201d Haia then requested a contested case on behalf of Life of the Land, whose constituency includes native Hawaiians on Kaua`i. O`ahu Land Board Kathryn Inouye supported Haia\u2019s suggestion.<\/p>\n
From the audience, KIUC\u2019s attorney Linnel Nishioka noted that it was her position that a contested case hearing is not required for dispositions.<\/p>\n
Rent Reduction<\/b><\/i>
\nBuilt by Lihu\u2018e Plantation in the 1920s, the East Kaua\u2018i system is one of the largest diversion systems in the state, taking as much as 150 million gallons a day from the north and south forks of Wailua River, Kapa\u2018a Stream, Anahola Stream, Hanalei River and their tributaries.<\/p>\n
After Lihu\u2018e Plantation closed in 2000, the state was left with the burden of maintaining the system, which \u201cincludes 51 miles of ditches and tunnels, 18 stream intakes, three major reservoirs, and two hydropower plants and the average capacity was 100 to 140 mgd,\u201d according to an Agricultural Water Use and Development Plan, prepared for the state in December 2003 by Water Resource Associates.<\/p>\n
During Lihu\u2018e Plantation\u2019s heyday, the system irrigated 6,000 acres in Kapa\u2018a, 6,500 acres in Kalepa, and thousands more in the Lihu\u2018e-Hanamaulu area. Today, those lands are mostly fallow, with a small fraction being farmed by the East Kaua\u2018i Water Users Cooperative.<\/p>\n
The cooperative has had a revocable permit to run the Wailua-Kapa\u2018a portion of the East Kaua\u2018i Irrigation System since April 1, 2002, but has paid no rent as it has long contested the state\u2019s decision to charge the coop $1,971 a month, or $23,652 a year for the 3,375 million gallons a year (9.25 mgd) di verted through the Wailua-Kapa\u2018a ditch system. The coop argues it should only be charged $450 a month ($5,400 a year) for the 750 million gallons a year it actually uses.<\/p>\n
At the Land Board\u2019s December meeting, Land Division administrator Dierdre Mamiya noted that even though it has yet to pay any rent, the coop has an annual deficit of $15,820.<\/p>\n
\u201cAnnual rent would be $23,000, which would be a projected deficit of nearly $40,000. The Land Division only started billing the coop in September 2004. They have not paid any rent. The total amount owed is $53,000 and they have not provided a security deposit or monthly reporting and metering requirements are not complied with,\u201d she said.<\/p>\n
The Land Board can issue permits for water rights under conditions that will best serve the interest of the state, Mamiya noted. The portion of the irrigation system run by the coop includes a ditch that feeds the popular Fern Grotto, as well as the Wailua Reservoir, where the Hawai\u2018i Nature Center recently received a concession from the Land Board for operation of an educational center and other activities.<\/p>\n
\u201cThere are some state lands [that the ditch feeds]. There\u2019s also some state interest as far the Fern Grotto, making sure that stays wet\u2026There\u2019s also the Wailua Reservoir where we want to do our environmental education program. So there are some state interests here. But the bottom line is, the coop cannot afford the maintenance of the system and the rent,\u201d Mamiya said.<\/p>\n
Mamiya continued that a study done for the state by ITC, a consultant, when Lihu\u2018e Plantation was closing estimated that it would take $340,000 a year to maintain the system at a certain standard. The 2003 agricultural water use plan estimated that it would cost some $10 million to rehabilitate the system (including $4 million to reroute a portion of the ditch so it runs entirely on state land) and $215,000 a year to maintain.<\/p>\n
The coop\u2019s income is \u201cnot anywhere near the level needed to maintain that standard,\u201d Mamiya said. \u201cObviously this is what we\u2019re confronting with the closure of sugar plantations. We\u2019re dealing with an extensive water system that was left by the plantation\u2026 There\u2019s the protection of ag. On the other hand, we want to make sure the system is going to be maintained. We want to make sure there\u2019s not a wasting of water\u2026[the diversion] is four and a half times what\u2019s being used now. It should be a lot lower than that, the amount diverted versus the amount used,\u201d she said.<\/p>\n
Despite the fact that the coop is in no financial position to maintain its irrigation system, Kaua\u2019i land agent Thomas Oi recommended that the board confirm its staff\u2019s in -house valuation of $1,971 a month for the coop\u2019s permit.<\/p>\n
Kaua\u2018i Land Board member Ron Agor disagreed and moved to reduce the coop\u2019s rent to $156 a year while the DLNR works on a set-aside of the ditch system to the state Department of Agriculture or the Agribusiness Development Corporation, a task that is expected to take a few months.<\/p>\n
\u201cWe really need to get these systems under DOA or ADC. That is their mission, to promote agriculture,\u201d Mamiya said.<\/p>\n
Board member Kathryn Inouye mentioned that she had received a couple of letters from the public requesting that the board address instream flow standards and asked deputy attorney general Bill Wynhoff whether those larger water issues affected the board\u2019s decision on the coop\u2019s permit.<\/p>\n
Wynhoff responded that since it was only a month-to-month permit, the board could go ahead and take action. \u201cWater issues are always complicated,\u201d he said.<\/p>\n
\u2018The permit is issued already,\u201d Mamiya said, and Wynhoff added, \u201cAll you\u2019re being asked to do is set a price.\u201d<\/p>\n
The board then voted unanimously to approve Agor\u2019s motion.<\/p>\n
— Teresa Dawson<\/p>\n
Volume 15, Number 7 January 2005<\/p>\n","protected":false},"excerpt":{"rendered":"
It’s a familiar tale: A small group of diversified farmers demands that stream water continue to be diverted into an old, leaky sugar irrigation system, despite the fact that neither they, nor the state, can afford to fix or maintain … 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":[134,28],"tags":[],"class_list":["post-1505","post","type-post","status-publish","format-standard","hentry","category-january-2005","category-water"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1505","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=1505"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1505\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1505"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1505"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1505"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}