Controversy flows at water meeting

Upcountry water users get 27% of their supply from East Maui, not 80%

WAILUKU — By water, all things find life.

This is the mantra of the Maui County Department of Water Supply, whose staff and board are charged with overseeing the county’s drinking water.

The phrase is similar to Ola I ka Wai, which means “Water is Life” in Hawaiian.

Water carries a strong current of emotional triggers in Hawaii and particularly on Maui, where many continue to debate over rights to water, whether for public or for private use. And even if Hawaii’s cultural and spiritual connections do not resonate, on a scientific level, nevertheless, water is literally required for all living things.

It’s no wonder, then, that the subject of water, especially when connected to embattled, siphoned-by-commercial interests, dried-out East Maui streams would be such a big deal. After all, only a year ago the state ordered 17 East Maui streams restored after decades of controversial diversions.

One angle of that controversy, the focus of a bill currently moving through the state Legislature, was put to rest last week at a county water board meeting.

At issue was whether the Upcountry water system, partially fed by East Maui streams, would be drastically and immediately impacted if lawmakers do not approve hotly contested HB 1326.

The bill, which passed the state House and is awaiting a Senate hearing, would allow revocable water permits to be extended while 12 applications for water leases are pending. Water permit holders would be allowed up to 10 consecutive one-year holdovers, a major change to the bill’s original three consecutive one-year holdovers. It would impact Mahi Pono, the new owners of 41,000 acres of former sugar cane land purchased from Alexander & Baldwin, as well as seven permit applicants on Hawaii island, including small coffee farmers, and four on Kauai, notably Kauai Island Utility Cooperative.

With its predecessor, Act 126, having already generated controversy, the existing bill has divided legislators and community members, generating nearly 800 pages of testimony. Add the Upcountry water angle — used in Mayor Michael Victorino’s State of the County address and by state leaders who depict dire consequences if it fails — and the Maui water topic gets even more murky.

Short answer to the Upcountry argument for the bill? It’s nonpassage would not mean an Upcountry water Armageddon. Also, the 80 percent number used to represent Upcountry’s dependence on East Maui water is much less than some state and county officials have been saying.

Will water be available?

The answers given by county water Director Jeff Pearson eased the minds of some worrying about water Upcountry and its relationship to the bill. Furthermore, the county’s top water official cleared an additional misconception about HB 1326 and its potential impact on East Maui streams, a welcome clarification for board and community members (see related story).

“I don’t think it’s a panic, even those who are against the bill, they are going to support domestic water use,” Pearson said. “We’re sitting in a place where it’s a public trust purpose, it’s a domestic use, and there is water flowing in the ditch, so therefore I am quite confident we are going to still have water available.”

Pearson was responding at a public meeting Thursday where the county Board of Water Supply questioned whether Upcountry would have enough water should the bill not pass. It is an important query, seeing as there must be some science to explain calculations used as fodder to support or refute proposed legislation.

“The percentage is one of the things that has been said several times, and even the mayor included it in his State of the County address,” said testifier Dick Mayer, a Kula resident and former University of Hawaii Maui College faculty member and former planning commissioner. “They have been saying 80 percent of the surface water comes from East Maui and therefore we have to make sure A&B or Mahi Pono get the lease. That has been very deceiving.”

The Victorino administration letter of support for HB 1326, where half of the text is about Upcountry water, is posted under testimony on the state Legislature website.

“The water provided through this means ensures Maui County’s water delivery services to approximately 35,000 residents of Upcountry Maui, schools, the Kula Hospital, and the Kula Agricultural Park. . . .

The entire Upcountry Maui system relies on water from East Maui’s streams and ditches. Approximately 80% of water delivered by Maui County’s Department of Water Supply to Upcountry Maui comes from surface water sources.”

To better explain estimates, Mayer created a table from the county’s Water Use and Development Plan. It showed four sources for the Upcountry water system, the type of water, usage in million gallons per day and the percentage of reliance. Wells, a groundwater source, make up 1.23 mgd, or 17.9 percent. Surface water sources are Olinda (0.922 mgd and 13.4 percent), Piiholo (2.863 mgd and 41.7 percent) and Kamole (1.847 and 26.9 percent) treatment plants.

The pertinent source here is Kamole, the only one fed from state-leased, East Maui Irrigation lands. So the more accurate depiction of Upcountry system’s reliance on water impacted by HB 1326 is 26.9 percent — not 80 percent — Mayer explained.

Pearson affirmed Mayer’s estimates. He added the highly variable nature of water data and usage, which changes on a daily basis depending on seasonal weather conditions, such as droughts or rain, and whether infrastructure is working optimally, among other considerations.

“I agree with the breakdown,” Pearson said. “And I also agree that it appeared a little deceiving when you’re saying 80 percent of the Upcountry water. . . . Actually deceiving is one word but it’s true in another sense where EMI manages the other ditches that feed raw water to Olinda and Piiholo treatment plant as is shown on this table. But those are not on state lands so those are not affected by (HB) 1326 or revocable permits. Therefore what is being affected or discussed with (Act) 126 and 1326 is that 26.9 percent, or what Mr. Mayer has shown on the table.”

Shay Chan Hodges, board vice chairwoman, said the clarification is helpful because the water system is difficult to understand for laypeople.

“(The 80 percent) is somewhat deceptive,” she said. “It’s not like 80 percent of the water coming out of the faucet is impacted by this legislation. These are not easy concepts to talk about in sound bytes. But one task of the water board is to try to help the community understand how our water system works.”

Hodges asked about immediate water restrictions for Upcountry should the bill fail, referencing comments in a Maui News March 6 article.

“I did talk with (state Rep.) Troy Hashimoto over the phone but I didn’t say anything that drastic,” Pearson replied.

Pearson said corporation counsel will help determine the county’s options should HB 1326 fail.

Testifier Lucienne De Naie, an East Maui resident and community activist, said the county should investigate its water needs independently of any landowner tied to the EMI water system.

“The county has an independent ability to negotiate with water for public lands. That’s not made clear every year when the leases come up,” she said. “What rights does county have to waters whether leases are given to A&B or not? And then you have to work out an agreement to convey the waters. It might usher a new era in county planning to know what water belongs where, in what quantities, under what authority.”

Fate of bill in Senate up in the air

HB 1326 made it through the state House earlier this month, with 34 voting yes, five voting yes with reservations, nine voting no and three excused. The Maui County delegation was split: Reps. Hashimoto, Kyle Yamashita and Justin Woodson supported it and Reps. Lynn DeCoite, Angus McKelvey and Tina Wildberger were against it.

It has yet to be heard by any committee in the Senate, and no hearing had been scheduled as of Saturday evening.

Generally speaking, supporters of HB 1326 say that farmers big and small around the state need the permits to continue vital operations. Opponents say that the holdover permits give out blank checks with no environmental impact statement accountability, especially in the wake of big sugar’s environmental abuses.

Wildberger said corporations such as Kauai Island Utility Cooperative and A&B could have been pulled out and decided separately from Big Island small farmers, who need the water to continue operations, but the current bill holds small farmers hostage.

Looking at the legal predecessors to HB 1326 reveals a thread of controversy that predates Mahi Pono.

A Kauai council member in testimony opposing the current bill said the amendment to HRS 171-58 unreasonably protracts the time period for water users to convert their month-to-month permit leases.

“After a Hawaii Supreme Court decision in response to Hui o Na Wai Eha on Maui criticizing the state for not meeting its public trust obligation to protect waters of the state, the Legislature passed Act 126 in 2016 that required all holders of water use Revocable Permits to convert to a lease no later than June 30, 2019, thus giving the users three full years maximum to convert their revocable permits to leases,” Felicia Cowden said.

The state Department of Agriculture acknowledged that Act 126 was intended to end the “undesirable” practice of “essentially automatic” revocable permit renewal but that work to obtain a longer water lease was underestimated.

“We also believe that the passage of Act 126 did not anticipate the extremely complex nature of obtaining a long-term water lease, thereby making the three-year window exceedingly difficult to meet,” its testimony said. “The amendment of this requirement, along with clarifications on use following the filing of a contested case, brings stability to irrigation systems affected by this issue.”

For information on the bill and testimony, visit www.capitol.hawaii.gov.

* Kehaulani Cerizo can be reached at kcerizo@mauinews.com.

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