More than a decade ago, the Water Commission issued its first decision in the contested case hearing over the IIFS. That decision restored 12.5 million gallons a day of stream flow to Waihe\u2018e River and Waiehu Stream. Flows for Waikap\u016b Stream and Wailuku River, which was then still called \u2018Iao Stream, remained unchanged.<\/p>\n\n\n
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<\/a><\/figure>\n<\/div>\n\n\nThe state Supreme Court ultimately vacated the decision, finding that the commission \u201c(1) failed to enter [findings of fact] and [conclusions of law] regarding the effect of its amended IIFS on traditional and customary Native Hawaiian rights and the feasibility of protecting those rights pursuant to Ka Pa\u2018akai, (2) did not adequately justify its decision to not restore streamflow to two of the streams because it failed to consider the effects on instream uses other than amphidromous species; and (3) erred in its treatment of diverters\u2019 system losses and alternative water sources in granting water use permits,\u201d the court stated in its recent decision.<\/p>\n\n\n\n
The court remanded the matter back to the commission. However, rather than continuing the contested case hearing, the parties to the case reached a settlement, which the commission approved on April 17, 2014.<\/p>\n\n\n\n
Under the settlement, the IIFS for Waihe\u2018e River was set at10 mgd; the IIFS for North Waiehu Stream above the Waihe\u2018e Ditch was set at 1 mgd; for Wailuku River it was 10 mgd below the WWC diversion \u201cwith low-flow adjustments and 5 mgd at the stream mouth; and 2.9 mgd for Waikap\u016b Stream below the South Waikap\u016b Ditch,\u201d the court stated.<\/p>\n\n\n\n
In addition to the IIFS proceeding, the Water Commission had to deal with more than 140 applications for surface water use permits, having designated N\u0101 Wai \u2018Eh\u0101 watersheds as a surface water management area in 2008 in response to a petition brought by the Hui and MTF. <\/p>\n\n\n\n
\u201cIn January 2016, A&B announced closure of operations of the last sugar plantation on Maui, HC&S, and a planned shift to diversified agriculture. In light of that closure, the Hui\/MTF filed a petition to increase N\u0101 Wai \u2018Eh\u0101\u2019s IIFS. The commission consolidated the SWUPA and IIFS proceedings,\u201d the court stated. <\/p>\n\n\n\n
A contested case hearing followed later that year. The final decision by the commission, which did not come until June 2021, resulted in a total increase in IIFS of just a little more than 2 mgd. <\/p>\n\n\n\n
The Waihe\u2018e River IIFS saw in increase of 1.44 mgd. No diversions would be allowed from North Waiehu Stream; an IIFS of 0.3 mgd was set for South Waiehu, with low-flow provisions. The IIFS for Wailuku River and Waikap\u016b Stream remained unchanged, except for low-flow modifications. <\/p>\n\n\n\n
The Court\u2019s Critique <\/strong><\/p>\n\n\n\n The court noted that the Water Commission \u201ceffectively retained the \u2018status quo\u2019 IIFS for N\u0101 Wai \u2018Eh\u0101 streams from the 2014 agreement, which the parties agreed to before HC&S closed sugar operations. Rather than proactively addressing the historic opportunity to restore stream flows, in setting the IIFS, the commission cited the benefits of the 2014 IIFS amendments [and] stated that \u2018[n]o further habitat studies have been conducted\u2019 since the 2014 amendments.\u201d <\/p>\n\n\n\n It continued, \u201cTrust duties require the commission to make findings and conclusions expressly assessing whether the restoration of additional flow is \u2018practicable\u2019 and would be in the public interest,\u201d and the commission failed to do so with regard to N\u0101 Wai \u2018Eh\u0101. <\/p>\n\n\n\n The commission had concluded that, \u201cAny further increases in habitat from increasing the restoration flows\u201d \u2014 beyond what was restored via the 2010 and 2014 IIFS amendments \u2014 \u201cwill not result in proportionate increases. The first amounts of increased flows in dry or very dry low-flow streams quickly result in large increases in wetted habitat, and the increases in wetted habitat from further increases in flow become less dramatic.\u201d <\/p>\n\n\n\n That, the court found, was an inadequate justification for not restoring more water. <\/p>\n\n\n\n It pointed out that the commission\u2019s first decision in the case \u2014 which was cited in its second decision \u2014 suggested that IIFS should increase incrementally. <\/p>\n\n\n\n “It has been well over ten years since the 2010 amendments, and almost ten years since the most recent 2014 amendments to the IIFS; thus, the finding actually suggests the IIFS should now increase. Second, that finding suggested such time was necessary in order to properly study the effects of stream flow restoration, but the commission has not sought out the information it needs through additional scientific studies or otherwise,\u201d the court wrote. It noted that a previous water case on O\u2018ahu (Wai\u0101hole I) <\/em>\u201csuggested a lack of proper studies and adequate information weighs in favor of higher stream flows,\u201d the court wrote. <\/p>\n\n\n\n Finally, the court found that the commission needed to consider more than just the amount of \u201cwetted habitat\u201d the current flows provide to stream fauna. <\/p>\n\n\n\n \u201cThe commission argues it did not have to increase the IIFS, even though the last sugar plantation closed, in part because it properly considered other increased demands for water, including by kalo growers with appurtenant rights who did not previously have permits. It is true that the commission\u2019s decision incorporated permits for new users with appurtenant rights, and appurtenant rights are protected uses. But nowhere does the D&O II explain that this is the reason the commission decided not to increase the IIFS. … <\/p>\n\n\n\n \u201cWe remind the commission of this court\u2019s concern that \u2018[e]very concession to immediate offstream demands . . . increases the risk of unwarranted impairment of instream values, ad hoc planning, and arbitrary distribution,\u2019\u201d the court wrote, adding that it shared Hui\/MTF\u2019s and OHA\u2019s skepticism that the gist of the commission\u2019s decision was that the transition from sugar to diversified agriculture has resulted in \u201ca 1:1 replacement of plantation water uses with \u2018other uses.\u2019\u2019\u2019 <\/p>\n\n\n\n \u201cIf this is the case, though, the commission must explain why that is in the public interest,\u201d the court stated. <\/p>\n\n\n\n The court then went on to describe how the commission failed to clarify whether all downstream uses were incorporated into the IIFS and to explain why it actually decreased <\/em>instream flows in Wailuku River. (The commission\u2019s decision and order retained the 10 mgd IIFS for Wailuku set by the 2014 settlement, but it also authorized 0.668 mgd of new public trust uses of water from the river. \u201cThus, following the D&O II, 0.668 mgd less appears to be available for other instream uses,\u201d the court wrote.) <\/p>\n\n\n\n The court also noted that the commission had again, as it did in its first decision, failed to include findings on how the decision would affect \u201cinstream traditional and customary Native Hawaiian rights protected by the Hawai\u2018i Constitution and the feasibility of protecting those rights, as required by Ka Pa\u2018akai O Ka \u2018\u0100ina v. Land Use Commission.\u201d <\/em><\/p>\n\n\n\n Golf Course Gripe <\/strong><\/p>\n\n\n\n With regard to the appeals over permitted water allocations, the court dealt with MMK LP\u2019s first. <\/p>\n\n\n\n The commission granted MMK LP a water use permit for its two golf courses, which span 350 acres within the area of N\u0101 Wai \u2018Eh\u0101. In its permit application, the company requested 1.25 mgd, which is equivalent to 4,098 gallons per acre per day. That amount was \u201cthe approximate mid-point between the 1.037 mgd historical average and the driest month average of 1.53 mgd,\u201d the court wrote. <\/p>\n\n\n\n Such a large amount was not a reasonable-beneficial use of water, the commission found, given that it had determined that diversified agriculture only requires 2,500 gallons per acre per day. The commission classified the turf grass and other landscaping that MMK planned to water as \u201cdiversified agriculture,\u201d and, therefore, issued the company a permit for only 762,500 gallons per day (305 acres x 2,500 gallons per acre per day). <\/p>\n\n\n\n Among other things, MMK argued that the commission\u2019s decision was \u201cclearly erroneous,\u201d because the company had merely asked for what it was already using. (According to the court\u2019s decision, MMK has also paid WWC approximately four million dollars \u201cfor the perpetual delivery of up to 2.7 mgd.\u201d) <\/p>\n\n\n\n The court, however, noted that even when a party demonstrates its actual water need, \u201cthe commission may still determine, in its discretion, that an applicant\u2019s use or requested amount is not \u2018reasonable-beneficial.\u2019 This is because in issuing water use permits, the commission has a duty not only to consider actual need, but also other factors, including the proposed usage in relation to other \u2018public and private uses.\u2019 … <\/p>\n\n\n\n \u201cHere, the commission clearly explained its reason for rejecting MMK\u2019s requested amount of 1.25 mgd as not \u2018reasonable-beneficial,\u2019 stating the request, \u2018based in part on dry years as well as average years, is similar to requesting priority access to water during periods of water shortage over other permittees in advance.\u2019\u201d <\/p>\n\n\n\n The court also found that the commission’s decision to set MMK\u2019s use based on the water allowance for diversified agriculture was \u201creasonably clear\u201d and not erroneous. <\/p>\n\n\n\n \u201cIn Wai\u0101hole I, <\/em>the commission subjected golf courses to a higher standard than agricultural uses and imposed conditions on those uses. Similarly, here, the commission determined golf courses should not receive more water than diversified agriculture. The commission had an existing duty to closely scrutinize MMK\u2019s private commercial golf course use where public trust and other competing uses are at stake,\u201d the court wrote. <\/p>\n\n\n\n Number Games <\/strong><\/p>\n\n\n\n The court generally affirmed the commission\u2019s water allocation decisions but found that \u201cthe process by which it arrived at Mahi Pono\u2019s was \u201cnot reasonably clear.\u201d <\/p>\n\n\n\n After the contested case hearing ended in 2016 and more than a year after hearing officer Lawrence Miike issued his proposed decision in November 2017, \u201cHC&S and Mahi Pono jointly moved to withdraw HC&S and substitute Mahi Pono as the applicant …. HC&S and Mahi Pono declared good cause existed because HC&S transferred its interest in the Waihe\u2018e-Hopoi fields to Mahi Pono, and Mahi Pono intended to use the land for agricultural purposes,\u201d the court wrote. <\/p>\n\n\n\n To avoid having to hold more hearings to allow Mahi Pono to submit evidence regarding its water needs, the company chose to work with some of the other parties in the contested case on a settlement. <\/p>\n\n\n\n \u201cMahi Pono, the Hui\/MTF, and OHA thereafter entered into a \u2018Stipulation Regarding SWUPA 2206\u2019 and intended for the stipulation \u2018to be a binding and enforceable settlement and resolution of any disputes regarding SWUPA 2206.\u2019 The parties agreed that Mahi Pono\u2019s total allocation would be 11.22 mgd. Mahi Pono would receive an initial allocation of 9.35 mgd. That figure was derived by multiplying the total plantable acreage of 3,740 by \u2018the standard water duty\u2019 of 2,500 gallons of water per acre per day (gad) \u2018for efficient diversified agricultural operations.\u2019 The stipulation also provided for an additional 1.87 mgd if Mahi Pono agreed to certain other conditions.\u201d <\/p>\n\n\n\n The only signers to the agreement were Mahi Pono, the Hui\/MTF, and OHA, the court observed. The commission did not sign. <\/p>\n\n\n\n When the commission issued its final decision, it included an existing use permit to Mahi Pono for 15.65 mgd. That amount was based on a total irrigation requirement of 16.60 mgd for 3,650 acres (the area H&CS included in its permit application) and system losses of 2.15 mgd, offset by alternative water sources. Those sources, in accordance with Miike\u2019s proposed findings, included 0.1 mgd from the \u2018\u012aao Tunnel and 3 mgd from the company\u2019s Well No. 7. <\/p>\n\n\n\n Just days after issuing that decision, the commission issued an errata that drastically lowered Mahi Pono\u2019s water allocation to just 4.98125 mgd. The commission calculated the new amount by applying the 2,500 gallons per acre per day standard for diversified agriculture to the 3,650 acres of the Waihe\u2018e-Hopoi Fields it had determined that Mahi Pono would be planting. That amounted to an irrigation requirement of just 9.125 mgd. The commission also reduced the allowable system losses to 456,250 gpd, then subtracted the amount of water available from alternative water sources. Instead of just 3 mgd from Well No. 7, however, the commission decided that 4.5 mgd could be drawn. That higher number is what the Mahi Pono and other parties to the settlement agreed would be available from Well No. 7. <\/p>\n\n\n\n In its appeal, Mahi Pono argued that when the commission allowed the company to step into the shoes of HC&S, \u201cdue process required the commission to either re-open the evidentiary portion of the contested case hearing so that Mahi Pono could present evidence of its farm plan and water needs, or adopt the settlement agreement entered into by Mahi Pono, the Hui\/MTF, and OHA in full,\u201d the court explained. <\/p>\n\n\n\n Mahi Pono also faulted the commission for how it selected the information used to calculate the company\u2019s water allocation. It used the Well No. 7 capacity figure of 4.5 mgd from the settlement but did not base Mahi Pono\u2019s irrigation requirement for the Waihe\u2018e-Hopoi Fields on the acreage recognized in the settlement, 3,740 acres. Instead, the commission chose to use the acreage that HC&S planned to irrigate. <\/p>\n\n\n\n Although the court rejected Mahi Pono\u2019s argument that the commission violated the company\u2019s due process rights, it still found that the way the commission arrived at Mahi Pono\u2019s water allocation \u201cis not reasonably clear.\u201d <\/p>\n\n\n\n \u201cTo the extent the commission used statements from the substitution hearing and the settlement agreement as evidence, it must provide some reasons as to how it used that evidence to determine Mahi Pono\u2019s water allocation. … Even OHA and the Hui\/MTF, who seem to generally agree with the ultimate allocation of water to Mahi Pono, nevertheless criticize the commission for not \u2018fulfill[ing] its basic function as a decisionmaker to indicate in its final decision whether and how it actually exercised its discretion in considering the proposed settlement.\u2019 They continue, \u2018Here, CWRM\u2019s final decision included no FOFs and COLs addressing the proposed settlement. Indeed, it did not even include any acknowledgement that the settlement existed, or any indication whether CWRM had actually considered it, or potentially had just forgotten about it,\u2019\u201d the court wrote.\u00a0<\/p>\n\n\n\n The commission\u2019s decision to assume that HC&S\u2019s projected future uses would remain the same for Mahi Pono was \u201cclearly erroneous, as Mahi Pono made it clear in the substitution hearing and settlement agreement that it would be engaging in diversified agriculture, not bioenergy (which HC&S claimed it would be converting its sugarcane fields to,\u201d the court stated. <\/p>\n\n\n\n \u201cIt appears the commission had forgotten about Mahi Pono\u2019s planned use of diversified agriculture and had forgotten about the settlement agreement,\u201d it added. <\/p>\n\n\n\n The commission\u2019s final erratum \u201comits any reasons for (1) calculating Mahi Pono\u2019s irrigatable land acreage as 3,650 rather than 3,740, and (2) calculating Well 7\u2019s irrigation capacity as 4.5 mgd rather than 3.0 mgd. Thus, the erratum likewise suffers from a lack of clarity, which prevents this court from judging the propriety of Mahi Pono\u2019s water allocation,\u201d the court wrote. It then remanded the matter to the commission to make specific findings on why it chose those figures.\u00a0<\/p>\n\n\n\n Wailuku Water Company <\/strong><\/p>\n\n\n\n In its decision and order, the Water Commission included tables that identified projected allocations for when stream flows are too low to meet the IIFS and all of the permitted off- stream use. <\/p>\n\n\n\n The commission\u2019s order stated, \u201cDecreases in permitted amounts will be made to the lowest priority uses first. When the only remaining uses are all of the same priority, then the IIFS and all of the remaining uses will be decreased in equal proportion so that all uses may continue.\u201d <\/p>\n\n\n\n It also stated that \u201csufficient flows must be added for permittees and domestic users downstream of the IIFS locations. This will be a particularly difficult task with IIFS located where there are also substantial numbers of upstream as well as downstream permittees and domestic users, because WWC and to a lesser extent, Mahi Pono, must maintain a balance between upstream and downstream users while meeting the IIFS for instream purposes. Moreover, when stream flows are insufficient to meet the permitted amounts, WWC and Mahi Pono must reduce available water for downstream permittees at identified delivery points equitably according to the permittees\u2019 priority.\u201d <\/p>\n\n\n\n Water for native Hawaiian traditional and customary practices and domestic uses of the general public, for example, had a higher priority than other existing uses or new uses. <\/p>\n\n\n\n The court found that in leaving it to the private water purveyors to adjust allocations in times of scarcity, the Water Commission \u201cunlawfully delegated its discretionary decision-making authority.\u201d <\/p>\n\n\n\n The commission argued to the court that it did not unlawfully delegate its duties because the water purveyors were required to follow the final decision, \u201cincluding the tables within that specify how WWC must allocate water amongst permittees at various levels of stream flow. … The charts in the D&O II show how the water is to be reduced among various groups of water uses, but not between individual applicants,\u201d the court wrote. <\/p>\n\n\n\n “It is the commission\u2019s non-delegable duty to balance upstream and downstream users and make the determination of how to \u2018equitably\u2019 reduce water between permittees when stream flows are low. Moreover, in this case, many downstream users are lo\u2018i kalo growers and other users exercising their traditional and customary rights, which the commission has an affirmative duty to protect. … <\/p>\n\n\n\n \u201cThe priority lists created by the commission are broad, and under the D&O II, WWC and Mahi Pono could still choose how to \u2018equitably\u2019 distribute within and amongst the priority groups. The provision leaves too much discretion within the hands of private parties where constitutionally protected rights and public trust resources are at stake. … <\/p>\n\n\n\n \u201cWWC has an inherent self-interest in prioritizing its paying customers at the expense of other permittees. Allowing WWC and\/or Mahi Pono to decide how to \u2018balance\u2019 and \u2018equitably\u2019 distribute water amongst users when stream flows are low, and when to consult the Commission for further direction, may leave downstream users unprotected from self-serving actions on the part of WWC,\u201d the court wrote. <\/p>\n\n\n\n \u2014 Teresa Dawson <\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" According to a June 20 opinion by the Hawai‘i Supreme Court, the state Commission on Water Resource Management needs to justify why more water shouldn’t be left in four Maui streams long diverted for sugarcane production, especially since the largest … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16042,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[526],"tags":[3],"class_list":["post-16041","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-july-2024","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16041","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=16041"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16041\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16042"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16041"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16041"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16041"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}