{"id":15347,"date":"2023-09-01T07:05:26","date_gmt":"2023-09-01T17:05:26","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=15347"},"modified":"2023-09-01T08:32:41","modified_gmt":"2023-09-01T18:32:41","slug":"emergency-order-may-bring-more-hardship-to-taro-farmers","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=15347","title":{"rendered":"Emergency Order May Bring More Hardship to Taro Farmers"},"content":{"rendered":"\n

Above photo: In 2018, Hurricane Lane burned homes and taro lo\u02bb\u012b of the Palakiko family along Kaua\u02bbula Stream. Credit: Lauren Palakiko<\/sub><\/p>\n\n\n\n

On August 9, just one day following the horrific Lahaina fire, Governor Josh Green issued the third emergency proclamation relating to wildfires. Among the many state laws and regulations Green suspended was Chapter 174C, the State Water Code, \u201cto the extent necessary to respond to the emergency\u201d created by the tragic and devastating fire.<\/p>\n\n\n\n

Many of the other provisions of the several emergency proclamations issued last month (six, as of August 19) were uncontroversial, such as suspending in-state licensing requirements for health professionals and pharmacists, or laws relating to the use of government vehicles, or the state Soil and Water Conservation Districts.<\/p>\n\n\n\n

But, given the recent years of dispute over the use of West Maui surface waters, the suspension of Act 174C was not just controversial, it was inflammatory.<\/p>\n\n\n\n

It was only in June of last year that the state Commission on Water Resource Management determined that both the groundwater and streams of West Maui should be regulated as a Water Management Area (WMA).<\/a> The decision, which followed years of hearings and disputes, reassured kuleana landowners of protected flows of stream water into their lo\u02bb\u012b kalo, only recently reopened following the demise of Pioneer Mill in 1999.<\/p>\n\n\n\n

Just one day before the fire, and a year and a day after the designation became effective, the deadline fell for existing water users to submit applications for permits to the commission, allowing their water uses to continue. Now, with the suspension of Chapter 174C, it is not at all clear that their water rights affirmed in the process of designation will be respected. The Water Commission did not respond by press time to questions about whether the agency would be processing permit applications that had been submitted.<\/p>\n\n\n\n

The Lahaina Emergency<\/strong><\/p>\n\n\n\n

Glenn Tremble \u2013 who describes himself on LinkedIn as a \u201cbig shot\u201d at West Maui Land Company, Inc. \u2013 wasted no time in his efforts to use the Lahaina fire as a reason to breach the terms set by the Water Commission with respect to the surface water WMA. Tremble\u2019s employer manages three water purveyors in West Maui: Launiupoko Irrigation Co., which provides non-potable water from both Launiupoko Stream and, immediately north of that, Kaua\u2019ula Stream; Launiupoko Water Company, which provides potable water from wells; and Olowalu Water Company, which supplies non-potable water. The service areas for all three companies are south of Lahaina and were spared fire damage.<\/p>\n\n\n\n

On August 8, the day of the fire, Tremble was \u201cconcerned about the risk of fire due to downed power lines, exceptionally high winds, and low reservoir levels,\u201d he said in a letter two days later to Kaleo Manuel, then the deputy director of the Water Commission, recounting events of that Tuesday. \u201cWe reached out to CWRM at around 1:00 p.m. \u2026 to request approval to divert more water from the streams so we could store as much water as possible for fire control.\u201d<\/p>\n\n\n\n

\u201cIn response,\u201d Tremble continued, \u201cCWRM asked us whether MFD had requested permission to dip into our reservoirs and directed us first to inquire with the one downstream user to ensure that his lo\u02bbi and other uses would not be impacted by a temporary reduction (not elimination) of water supply.\u201d Tremble wrote that his company had already made \u201ca concerted effort\u201d to contact that user, but \u201che had not responded.\u201d<\/p>\n\n\n\n

In any case, Tremble received approval to divert more water by 6 p.m. \u201cBy then, we were unable to reach the siphon release to make the adjustments that would have allowed more water to fill our reservoirs,\u201d Tremble stated in his letter to Manuel.<\/p>\n\n\n\n

Apparently after receiving that permission and regaining access to the siphon release, West Maui Land Company did provide water to the Maui Fire Department and other responders, \u201cincluding the U.S. Coast Guard, Navy, and Marines,\u201d Tremble stated. \u201cMFD has already taken what little water we had left in our reservoirs and tanks\u2026.<\/p>\n\n\n\n

\u201cWhile we are doing what we can to help, we also reflect on what should have been done before the flames relentlessly marched through West Maui and what needs to be done to help our community recover and rebuild.\u201d<\/p>\n\n\n\n

Notwithstanding the fire having already been contained by the date of the letter, Tremble continued to plead that his companies be allowed to fill their reservoirs. \u201cFires are frequent in West Maui,\u201d he wrote. \u201cAs we experienced, a request to use water from our reservoirs to fight a fire must go unmet if we do not have water in our reservoirs. In an emergency situation, or when an emergency is anticipated, a temporary reduction (not elimination) of water to one individual\u2019s farm should not be prioritized over and delay efforts to save an entire community.\u201d<\/p>\n\n\n\n

Tremble then asked, \u201cas a first step,\u201d that the commission allow his companies to fill their reservoirs \u201cwhen a fire has been reported\u201d in the area from Ukumehame in the south to Kahoma (Lahaina), the five southernmost streams in the surface water management area. <\/p>\n\n\n\n

Second: that the commission \u201cimmediately suspend the various interim instream flow standards and other regulations from Ukumehame to Kahoma until the emergency period has ended.\u201d <\/p>\n\n\n\n

Third: that the commission \u201cimmediately initiate proceedings to amend the various interim instream flow standards from Ukumehame to Honokowai\u201d \u2013 in other words, the entirety of the surface water management area \u2013 \u201cto provide more water for fire suppression.\u201d<\/p>\n\n\n\n

That same day, Dawn Chang, chair of the Water Commission, replied. Invoking the governor\u2019s emergency suspension of the Water Code, Chang took \u201cimmediate action on your requests\u201d and said she would be seeking \u201cfull commission action at a future meeting.\u201d <\/p>\n\n\n\n

She granted both of Tremble\u2019s first two requests, while still asking Tremble to \u201ctake all reasonable actions to minimize impacts to downstream users who are dependent and solely sourced from stream water in Kaua\u02bbula and Kahoma valleys.\u201d<\/p>\n\n\n\n

With respect to his third request, Chang stated she supported it and had already \u201casked commission staff to analyze Interim Instream Flow Standards and other regulations that would provide more water for fire suppression\u201d and then that it \u201crecommend appropriate administrative and commission actions to be taken.\u201d<\/p>\n\n\n\n

On August 12, Tremble again took pen in hand to write a fulsome letter of thanks to Chang. \u201cI have been at loss for words to express my appreciation for your prompt response and decisive action,\u201d he wrote. \u201cOur appreciation extends to Deputy Director Manuel as well\u2026 we would never imply responsibility on his part. Our words were born in anguish for the loss and frustration over the process to provide water to MFD and to the community. \u2026 Your decision has helped put things back in the right order.\u201d<\/p>\n\n\n\n

He concluded by asking that the water management area designation for West Maui \u201cbe suspended and ultimately modified. While we cannot erase the pain, we must take every small good from this great bad. The most good will come from learning from our loss so the lands never again see dawn rise over broken hearts.\u201d<\/p>\n\n\n\n

<\/strong>Eight days after the Lahaina fire, on August 16, the DLNR announced that it was \u201cre-deploying\u201d Manuel. \u201cThe purpose of this deployment is to permit CWRM and the Department to focus on the necessary work to assist the people of Maui recover from the devastation of wildfires. This deployment does not suggest that \u2026 Manuel did anything wrong.\u201d <\/p>\n\n\n\n

A Legal Challenge<\/strong><\/p>\n\n\n\n

Five days after Manuel\u2019s redeployment, two Maui residents \u2013 Kekai Keahi and Jennifer Mather \u2013 sued Chang and the Water Commission, alleging violations of the state Sunshine Law (Chapter 92), the Water Code (Chapter 174C), Chapter 91, relating to rule-making, and Chapter 26 of Hawai\u02bbi Revised Statutes, setting forth conditions of employment for persons under the jurisdiction of boards or commissions.<\/p>\n\n\n\n

The plaintiffs, represented by Maui attorney Lance Collins, had wanted to testify on the redeployment at an open meeting of the Water Commission, the complaint stated. But since Manuel was removed from his position without any opportunity for them to testify, that they could not do so, violating Chapter 92. Also, it constituted a violation of the Water Code, which gives the commission power to appoint and remove agents and hire employees.<\/p>\n\n\n\n

Chang effectively engaged in rule-making by taking on herself the authority to discharge the deputy to the commission, the complaint states. \u201cTo the extent that the commission can delegate its authority to a single member of the commission or another, that delegation is an agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy,\u201d amounting to \u201cunwritten or unpromulgated\u201d rule-making.<\/p>\n\n\n\n

That \u2018Downstream User\u2019<\/strong><\/p>\n\n\n\n

Since the Lahaina fire and Tremble\u2019s complaint, there has been a lot of discussion about Manuel having put the interests of a single person ahead of the needs of the community, a view that Governor Green has himself made explicit.  At a news conference on August 15, he stated directly, \u201cPeople have been fighting against the release of water to fight fires.\u201d At other times, he has suggested that the Legislature would need to get involved in removing or amending terms of the water management designations for West Maui.<\/p>\n\n\n\n

Tremble didn\u2019t name the \u201cdownstream user\u201d who was later disparaged in comments from Green and countless other individuals commenting on news reports of the fire. But almost certainly, the reference was to the family of Charlie and Lauren Palakiko, who are the only users who take water directly from the Kaua\u02bbula Stream to irrigate their lo\u02bb\u012b kalo.<\/p>\n\n\n\n

In August 2018, the Palakikos lost all but two of the family homes in a fire fed by winds from Hurricane Lane. Their water lines were burned, as were their lo\u02bb\u012b and surrounding lands. Only months earlier, in March 2018, had the Water Commission established interim instream stream flows for Kaua\u02bbula Stream and others in West Maui, which at least allowed the Palakikos a fighting chance against the fire.<\/p>\n\n\n\n

The initial reticence of the commission staff to accede to Tremble\u2019s request may have had something to do with their awareness of the Palakikos\u2019 vulnerability to yet another devastating fire if their sole water source were to disappear or severely decline, as it had even in the year since the Water Management Area was approved.<\/p>\n\n\n\n

In fact, even before the designation, in April 2022, the Water Commission suspended the instream flow standard for Kaua\u02bbula Stream. It voted to allow diversions that would take up to 300,000 gpd from the stream, regardless of whether the IIFS was met, to be directed to Kamehameha Schools lessees to the north, other kuleana landowners, and the 400 customers of LIC. As the commission was informed by staff, since the IIFS had been imposed in 2018, LIC had rarely left flows in the stream sufficient to meet IIFS.<\/p>\n\n\n\n

The suspension was to last 90 days. During that time, Tremble told the commission, he was anticipating LIC could obtain rate relief from the Public Utilities Commission that would let the company recoup its costs of providing pumped water to irrigation companies and thus allow more flows in the stream to go to users with public trust and kuleana rights.<\/p>\n\n\n\n

The suspension has not been lifted since then.<\/p>\n\n\n\n

Green Vetoes Water Bills<\/strong><\/p>\n\n\n\n

Following the fires on Maui and the \u201credeployment\u201d of Manuel, Green\u2019s vetoes of two bills that would have strengthened the powers of the Water Commission may be viewed in a new light.<\/p>\n\n\n\n

HB 153, which would have increased fines that the commission could impose on violators to a maximum penalty of $60,000 was the very first legislation that Green vetoed. The bill would have allowed the commission to fine violators up to a maximum of $60,000 a day for each day that a violation exists or continues to exist. Green also vetoed HB 1088, which would have clarified the conditions under which the Water Commission would be able to declare emergencies<\/p>\n\n\n\n

Initially, HB 153 would not have increased the range of fines (from a minimum of $50 to a maximum of $5,000) but instead would have clarified what counts as an ongoing violation.<\/p>\n\n\n\n

It was amended to increase the maximum to $25,000, and then amended again to raise the maximum to $60,000. That number reflects a rounding up of the maximum fine proposed in Senate Bill 445, which would have increased the penalty ceiling of the Department of Health to $59,973, to closely match penalties imposed by the EPA for similar violations. (SB 445 made it through to conference committee but stalled out there.)<\/p>\n\n\n\n

HB 153 was amended in the Senate to include the addition of two full-time equivalent professional positions. Commission chair Dawn Chang testified that the positions would help the agency ensure compliance with and enforcement of state Water Code penalties. <\/p>\n\n\n\n

The governor\u2019s veto message describes his objections:<\/p>\n\n\n\n

\u201cThis bill is objectionable because, while we understand and respect the need to hold violators of the State Water Code accountable, there are concerns that the significant increase of the maximum fine from $5,000 a day to $60,000 a day is not sufficiently justified. Several state agencies pump water to their housing developments, and there are indications that daily over-pumping from wells occurs throughout the State. This bill could have an adverse impact on new housing developments because this is one of the first places county boards of water supply may look when there is a need to cut water usage.\u201d<\/p>\n\n\n\n

David Kimo Frankel, an attorney who has litigated water issues, commented, \u201cThe governor has demonstrated more interest in public relations than in policy. He receives information from a small group of advisors who are very close to the development community. These developers \u2013 particularly those on Maui \u2013 despise the Water Commission and will do anything they can to undermine it.<\/p>\n\n\n\n

\u201cThat\u2019s the only explanation for the governor\u2019s veto of bills that would have enhanced the ability of the Water Commission to protect our water. The bills would have had no effect on affordable housing whatsoever.\u201d<\/p>\n\n\n\n

\u2014 Patricia Tummons<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Above photo: In 2018, Hurricane Lane burned homes and taro loʻī of the Palakiko family along Kauaʻula Stream. Credit: Lauren Palakiko On August 9, just one day following the horrific Lahaina fire, Governor Josh Green issued the third emergency proclamation relating … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":15359,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,515,28],"tags":[7],"class_list":["post-15347","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agriculture","category-september-2023","category-water","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15347","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=15347"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15347\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/15359"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15347"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15347"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15347"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}