{"id":8330,"date":"2015-08-31T22:41:07","date_gmt":"2015-08-31T22:41:07","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=8330"},"modified":"2018-06-15T01:36:08","modified_gmt":"2018-06-15T01:36:08","slug":"water-commission-gives-parties-one-month-to-mediate-west-kauai-waste-complaint","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=8330","title":{"rendered":"Water Commission Gives Parties One Month\u00a0To Mediate West Kaua`i Waste Complaint"},"content":{"rendered":"<p><a href=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2015\/02\/Screenshot-2015-08-21-07.14.30.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"alignnone wp-image-8348\" src=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2015\/02\/Screenshot-2015-08-21-07.14.30-1024x630.jpg\" alt=\"Screenshot 2015-08-21 07.14.30\" width=\"707\" height=\"435\" srcset=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2015\/02\/Screenshot-2015-08-21-07.14.30-1024x630.jpg 1024w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2015\/02\/Screenshot-2015-08-21-07.14.30-300x185.jpg 300w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2015\/02\/Screenshot-2015-08-21-07.14.30-80x50.jpg 80w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2015\/02\/Screenshot-2015-08-21-07.14.30.jpg 1061w\" sizes=\"auto, (max-width: 707px) 100vw, 707px\" \/><\/a>From the discussion at the August 11 meeting of the Commission on Water Resource Management, it looks like allegations of water waste in West Kaua`i will likely be resolved only through a contested case hearing. Both sides in the dispute said they\u2019re willing, even happy, to try to mediate a solution, but neither seemed very optimistic. Some of the Water Commission members shared their pessimism, as well.<\/p>\n<p>\u201cWho knows? Maybe sprinkle some fairy dust and everything will change. I don\u2019t know how far romanticizing it we should go,\u201dcommissioner Jonathan Starr said of the potential for successful mediation.<\/p>\n<p>Starr\u2019s skepticism stems in large part from responses submitted to the commission in July by the state Agribusiness Development Corporation (ADC) and its tenant organization, the Kekaha Agriculture Association (KAA), to questions posed by Water Commission chair Suzanne Case about who uses the diverted water and how it\u2019s used and moved around via the Koke`e and Kekaha irrigation systems.<\/p>\n<p>As commissioner Kamana Beamer put it last month, \u201cThe responses were not too robust.\u201dWhat\u2019s more, ADC\u2019s and KAA\u2019s responses made it clear that they won\u2019t readily part with even a drop of the water they currently divert from streams in West Kaua`i that would otherwise feed Waimea River.<\/p>\n<p>In 2013, community group Po`ai Wai Ola &#8212;\u00a0West Kaua`i Watershed Alliance accused the agencies of dumping unused diverted water and asked the Water Commission to end what it\u00a0saw as waste. The group\u00a0also petitioned the commission to amend the interim instream flow standards of the headwaters that feed Waimea River, as well as Waimea River itself, to allow for the streams \u2014diverted for agricultural purposes for the past century \u2014to be restored.<\/p>\n<p>A consultant hired by the Water Commission to investigate the waste complaint later found that, among other things, ADC and KAA are, indeed, dumping unused water collected from several streams into Koke`e Stream, creating a constant waterfall that would otherwise be dry most of the time. Although attorneys representing the community group have argued that that is an obvious waste of water that could be immediately rectified, ADC and KAA insist that none of the water is being wasted.<\/p>\n<p>Their responses to the commission provided only estimates of the amount of water the ADC\u2019s agricultural tenants in Kekaha use. And whether or not those tenants need all of the water, ADC and KAA argued that a constant flow through the system is necessary to maintain it and to feed hydroelectric plants that power pumps that keep the Mana Plain arable and prevent floods in Kekaha town and the Pacific Missile Range Facility.<\/p>\n<p>Before the responses had been submitted, commissioner Mike Buck had drafted a letter that he thought would provide the parties with some much needed guidance on how to mediate a solution. The letter encouraged the parties to \u201chelp identify and quantify reasonable and beneficial uses for any waters diverted from the Waimea watershed.\u201dIt also listed some \u201chopeful outcomes.\u201dThey included the following:<\/p>\n<ul>\n<li>\u201cThe return of quantities of currently diverted water to the Waimea River, ensuring its connectivity mauka to makai;<\/li>\n<li>\u201cEnsuring the seasonal connectivity of all the tributaries feeding into the Waimea River, where feasible;<\/li>\n<li>\u201cEnsuring the proper and efficient functioning of the Koke`e Ditch, which is important to supply water to Hawaiian Home lands;<\/li>\n<li>\u201cEnsuring that any water diverted out of the Waimea watershed is not wasted and is used for reasonable and beneficial purposes; and<\/li>\n<li>\u201cBringing the Pua Loa [sic] Reservoir to safe condition and increasing its capacity for public recreation, fire control, and water storage for Hawaiian Home lands.\u201d<\/li>\n<\/ul>\n<p>At the August 11 meeting, Water Commission staff had recommended that the commission \u201creview and finalize\u201dthe letter.<\/p>\n<p>Commissioner Starr said he appreciated the spirit of getting the parties and the community to collaborate on a solution, but didn\u2019t feel there was a great likelihood of solving the issues that way.<\/p>\n<p>\u201cI felt a lot more strongly about that after reading the responses to the request that commission staff had sent out,\u201dStarr said. The ADC\u2019s and KAA\u201ds responses \u201cjust seemed like it\u2019s all kind of taking the 5th rather than providing the information, which is part of what needs to be provided under the Water Code,\u201dStarr said.<\/p>\n<p>Starr recommended that the commission set a definite time period \u201430 days \u2014for mediation \u201cso it doesn\u2019t end up delaying our public trust duties.\u201d<\/p>\n<p>Commissioner Beamer also seemed skeptical about the benefits of mediation, \u201cespecially when the power situation and dynamics aren\u2019t equal.\u201d<\/p>\n<p>\u201cGiven that one party is exclusively delivering the water and has been for 100-plus years, I\u2019m not sure if that mediation can be on equal ground,\u201dhe said.<\/p>\n<p>\u201cIf there were a little bit of movement, even a bit of acknowledgement [by ADC and KAA] that these waters were a public trust resource and historic practices may not be the norm ad infinitum into the future and wastage isn\u2019t a good thing, that would be a reasonable first step,\u201dhe said, adding that short of that, he didn\u2019t think there was much to discuss and the commission should act on the waste complaint.<\/p>\n<p><b><i>It\u2019s Waste!<\/i><\/b><\/p>\n<p>Earthjustice attorney David Henkin, representing Po`ai Wai Ola &#8212;\u00a0West Kaua`i Watershed Alliance, added that the responses ADC and KAA gave the commission made it difficult for his client to participate in mediation.<\/p>\n<p>\u201cIn order for us to participate in some sort of mediation, we\u2019re going to need access to information. \u2026We need to have experts evaluate things,\u201dhe said.<\/p>\n<p>He suggested the commission approve a scope of mediation outcomes similar to, but much more robust, than those listed in Buck\u2019s letter.<\/p>\n<p>\u201cFor those who have looked at the information responses, you will note they consistently take the position, \u2018We may not currently have any use but we need to bank the water to fulfill some future need for diversified agriculture or the [Department of Hawaiian Home Lands].\u2019We need clear direction from the commission that when you\u2019re talking about waste, it\u2019s what\u2019s happening today, not in the future. The [Hawai`i] Supreme Court made that very clear in the <i>Waiahole<\/i> case,\u201d Henkin said.<\/p>\n<p>When it comes to waste, anything more than the minimum flows required for off-stream use must remain in the stream, he said.<\/p>\n<p>Henkin noted that in a February presentation by the commission\u2019s consultant, Steve Spengler of Element Environmental, \u201cit was identified there were several headwaters being diverted virtually in their entirely \u2026[and] being dumped back into Koke`e Stream.\u201dThe reason the water is being dumped is because it cannot be allowed to flow into the state\u2019s Pu`u Lua reservoir, which, for safety reasons, cannot be entirely filled.<\/p>\n<p>Henkin then went on to list other instances of apparent waste of millions of gallons of water a day, including the fact that more than 400,000 gallons of water a day is being sent through a sluice gate just to keep the gate clean.<\/p>\n<p>He later noted that KAA\u2019s responses to Case\u2019s letter excluded \u201cvery important information,\u201dincluding information on all water users, daily flow by dams on the Kekaha system, and electricity use by the irrigation pumps.<\/p>\n<p>\u201cThey tell the commission, \u2018We need the flow to power pumps.\u2019There is no information to verify that claim,\u201dhe said.<\/p>\n<p>He continued that KAA\u2019s responses to questions regarding water use by association members contradict each other. Its initial response claims that three members\u00a0 \u2014BASF, Pioneer Hi-Bred International, and Syngenta \u2014have an estimated use of nearly 14 mgd. But later submittals from those tenants make clear they don\u2019t use that much, he said. BASF said it uses less than .5 mgd, Pioneer reported it used only 1.16 mgd, and Syngenta estimated that it used at most 2 mgd and an average of 1.79 mgd, for a total of less than 4 mgd.<\/p>\n<p>\u201cPioneer in their response, even though you asked for data for several years, they said we\u2019re not gonna give you data from 2013-2014 because those were unusual years. \u2026I\u2019m assuming it was very low, which is why they don\u2019t want to share it,\u201dhe said.<\/p>\n<p>Henkin then went on to criticize KAA\u2019s water use estimate of 12,000 gallons per acre per day for Wines of Kaua`i. He said that was double the amount used on sugarcane (a very thirsty crop), four times what\u2019s generally used for diversified agriculture, and five times what the Waiahole ditch proceeding determined was needed for diversified agriculture.<\/p>\n<p>\u201cOn their face, these numbers were not credible,\u201dhe said.<\/p>\n<p>Finally, he took on ADC\u2019s and KAA\u2019s argument that continued diversion of water is needed to power the hydroelectric plants to power the pumps that prevent flooding. Henkin pointed out that those plants generate ten to 100 times the electricity needed by the pumps.<\/p>\n<p>\u201cThey\u2019re using an entire river to generate power and \u2026selling [it] to KIUC, not to run those pumps,\u201dhe argued.<\/p>\n<p>Despite all of his complaints, he said his client was\u00a0happy to mediate, but without direction from the Water Commission, resolution won\u2019t happen on its own.<\/p>\n<p>He noted that immediately after his client filed its\u00a0petition in 2013, ADC director James Nakatani made various statements to the press that the agency wanted to stop waste. And at a later Water Commission meeting, Doug Codiga, representing KAA, and deputy attorney general Myra Kaichi, representing the ADC, \u201csaid we should promptly address these waste issues [and] we\u2019ve had the same conversation at every meeting since,\u201dHenkin said.<\/p>\n<p>\u201cThey\u2019re very nice people, but we\u2019re not going anywhere because they hold all the cards,\u201dhe said.<\/p>\n<p>He urged the commission to act quickly on what he thought was ample evidence, collected by Spengler, of waste.<\/p>\n<p>\u201cIf at some point in the future, the DHHL or anyone were to come in saying we need this water, then the commission would exercise its discretion to balance the public trust. But in the meantime, there is no use for this water,\u201dhe said.<\/p>\n<p>Should the commission decide to order mediation, rather than order ADC and KAA to show cause why they should not have to restore unused water, Henkin said, \u201cwe should be given a very short leash to perform and produce. We\u2019re going to need access to the sites, we\u2019re going to need to be able to get into the ditch. So we\u2019re not just taking their say so.\u201d<\/p>\n<p>Commissioner Beamer asked Henkin whether it would be helpful if the commission directed the parties to devise a plan to eliminate waste from Waiakoali Stream while maintaining the Pu`u Lua reservoir at capacity.<\/p>\n<p>Henkin replied that he\u2019d agree to that, with an implicit finding by the commission that there is no arguable use of that water.<\/p>\n<p>\u201cI think the commission needs to say we find that it\u2019s waste and the parties need to work on a solution,\u201dhe said.<\/p>\n<p><b><i>No, it\u2019s not!<\/i><\/b><\/p>\n<p>When it was his turn to testify, Codiga, representing KAA, told the commission that Henkin\u2019s presentation \u201ctook us a lot closer to a contested case hearing\u201d and opposed any attempt by the commission to make a decision on the waste complaint without a more complete record.<\/p>\n<p>\u201cOur submission does not support the relief that was suggested [by Henkin]. It does not,\u201dCodiga said. \u201cWe think this can be done without a determination .. that there is such a thing as waste.\u201d<\/p>\n<p>KAA consultant Basil Gomes then took issue with Henkin\u2019s claims about the amount of water diverted.<\/p>\n<p>\u201cHe gave you a lot of very large numbers of how much flow is being diverted from the stream. \u2026They are representative of a snapshot in time, not flows of a day-to-day basis,\u201dGomes said.<\/p>\n<p>Gomes added that if the flows are reduced below maintenance levels (which he could not quantify), it would be extremely unlikely, given the costs, that the upper reaches of the irrigation system would ever function again. (Henkin later rebutted Gomes\u2019claims, noting that Spengler found one of the diversions had been concreted over. \u201cIt wasn\u2019t designed to take 100 percent of [Waiakoali] Stream,\u201dhe said.)<\/p>\n<p>Although she acknowledged that KAA and ADC had provided a lot of information, Case asked if there was any information the KAA didn\u2019t provide.<\/p>\n<p>\u201cAll relevant information was provided,\u201dCodiga replied.<\/p>\n<p>Commissioner Beamer, however, reminded Codiga that KAA member Pioneer Hi-Bred chose not to provide estimates of its 2013-2014 water use because those years were atypical.<\/p>\n<p>\u201cWe asked you for all relevant data. One of your parties chose not to provide two entire years,\u201dBeamer said.<\/p>\n<p>Codiga\u2019s suggestion that obtaining data for those years could be handled by a follow-up request from the commission seemed to upset Beamer, who said the KAA had already asked the commission to provide a written request for information, which Case did in May.<\/p>\n<p>\u201cNow you\u2019re giving us data leaving out two entire years and now you want another request?\u201dBeamer asked.<\/p>\n<p>He continued that KAA failed to provide any justification for why it was taking water from Waiakoali Stream and dumping it into Koke`e Stream, other than that continuous flow is needed to preserve the ditches.<\/p>\n<p>Deputy attorney general Kaichi attempted to explain, in part, the apparent incompleteness of the submittals by KAA and ADC.<\/p>\n<p>\u201cThe question is how much [water] have we been using now. \u2026Whether that information was proprietary, we had a lot of discussion on that. The seed companies disclosed what they could,\u201dshe said.<\/p>\n<p><b><i>Moving Forward<\/i><\/b><\/p>\n<p>Although it seemed nearly impossible for the attorneys involved in the case to agree on anything, Kaichi did echo Henkin\u2019s suggestion that some \u201clow-hanging fruit\u201d could be addressed in mediation.<\/p>\n<p>Restoration could occur gradually, \u201cnot go from 9 mgd to 2 mgd\u201das Henkin had suggested for one portion of the irrigation system, she said. \u201cThe risk of decreasing the water flow by 75 percent is too high. We don\u2019t know what the damage would be, what the cost would be.\u201d<\/p>\n<p>Kaichi envisioned that mediation could produce a plan where the parties would be \u201cslowly chipping away at each little fruit\u201dand where water would be restored \u201cboard by board, drop by drop.\u201d<\/p>\n<p>\u201cI don\u2019t believe we are ready to throw in the towel,\u201dshe said, although she admitted that resolution may be reached only after a contested case hearing.<\/p>\n<p>Starr, however, saw ADC\u2019s and KAA\u2019s wish to proceed with mediation as merely a stall tactic.<\/p>\n<p>\u201cI really have great difficulty in seeing how this is going to go anywhere. The diverters are saying there\u2019s no wastage and there is no need to provide more information and have difficulty providing access. \u2026This is just an attempt to kick the stone down the road and give them a few months to use or abuse public trust waters without any action,\u201dhe said.<\/p>\n<p>He again recommended giving the parties a month of discussion and requiring them to report back to the commission.<\/p>\n<p>\u201cPerhaps some magic will happen,\u201dhe said, but added, \u201cI see nothing but red flags here.\u201dHe then recommended that staff evaluate KAA\u2019s and ADC\u2019s responses and start drafting an order to show cause letter that the commission could approve at a later date.<\/p>\n<p>Case encouraged the parties to proceed on their own with discussions and report back to at the commission its September\u00a0meeting.<\/p>\n<p>At the September 16 meeting, the commission would gage the progress that had been made and \u201cwe [will] have a good sense by then whether we need to take affirmative action,\u201dshe said.<\/p>\n<p><b><i>\u2014 Teresa Dawson<\/i><\/b><\/p>\n","protected":false},"excerpt":{"rendered":"<p>From the discussion at the August 11 meeting of the Commission on Water Resource Management, it looks like allegations of water waste in West Kaua`i will likely be resolved only through a contested case hearing. Both sides in the dispute &hellip; <a href=\"https:\/\/environment-hawaii.org\/?p=8330\">Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":8348,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[390],"tags":[3],"class_list":["post-8330","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-september-2015","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/8330","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=8330"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/8330\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/8348"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8330"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8330"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8330"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}