The action, by unanimous vote Thursday, was strongly supported by the county government and by a variety of local groups. No one spoke against it.
As soon as the action is officially published, users of Na Wai Eha water will have one year to apply to the commission for a permit to use the water.
Persons not now using the water but who want to will also have one year to make an application.
Many in the audience of about 30 people at the Cameron Center clapped when the vote was completed.
“This seemed kind of mundane until you guys broke into applause,” Commission Chairwoman Laura Thielen said. “It is historic.”
Groundwater systems have been designated on three islands, including the Iao aquifer that underlies part of Na Wai Eha, but never before has the state taken direct control of a surface system — what the commission calls a “surface water hydrologic unit.” The commission has been petitioned to set instream flow standards for a number of hydrologic units, including Na Wai Eha and 27 stream systems in East Maui.
The State Water Code lays out the steps to be taken to justify a designation and then of permits, but the administrative details on a surface water system are indistinct, since it has never happened before.
Thielen promised an “inclusive, open, transparent” process but asked for give-and-take in making it work.
The commission is mandated to designate a water management area “when it can be reasonably determined, after conducting scientific investigations and research, that the water resources in an area may be threatened by existing or proposed withdrawals or diversions of water.”
Generally, a water system is considered threatened when withdrawals and diversions are causing damage to the quality of the water — as when excessive withdrawals of groundwater increase salinity.
With the Na Wai Eha streams, the designation is particularly problematic because Na Wai Eha is also in the midst of a contested case that will, at some point, reduce the amount of water available for off-stream users. How much must go back into the streambeds is to be determined.
Ed Sakoda, head of the Stream Protection and Management Branch, explained that the commission will issue permits for surface water use based on the existing interim instream flow standards for Na Wai Eha — the Iao, Waikapu, Waihee and Waiehu streams. Interim standards are whatever the current users can show they have been taking.
Once the commission sets permanent standards for the amount of water that must be restored to each stream, the commission will have five years to revise the permits.
According to John Duey, president of Hui O Na Wai Eha, some people with kuleana water rights do not now have access to water. Sakoda and Thielen said those people should submit applications.
Kuleana users have superior rights to most other applicants, so presumably these people would go near the head of the line, even though most other “new” users would compete for water at a disadvantage with existing users.
In any case, the commission can only allow permits for classes with constitutional or legal privileges (such as Native Hawaiian traditional and customary uses) or if they meet a reasonable and beneficial use test.
In 1989, the commission registered a list of existing kuleana users. This was, said Sakoda, a “snapshot” to give the staff an idea of what was going on.
Being registered is not the same as having a permit, and Thielen and Sakoda urged anyone on the register (or their heirs and assigns) to apply for a permit and to do so within the year time limit. Existing users who don’t apply in time will be treated as “new” users.
Thielen urged the activists in the room to go into the community and make sure everyone understands the importance of the designation.
Although the commission is supposed to act shortly after the one-year application period closes, Thielen said, “Being the state, you can be assured it’s not going to be quick.”
It took well over a year to determine permits when the Iao groundwater was designated, and the permits for upper-level (dike) water in Iao still have not been issued.
“We need to work through a fair process,” said Thielen.
Commissioner Dr. Lawrence Miike noted that the Hawaii Supreme Court, in one of its many decisions in the Waiahole case on Oahu, had told the commission to designate surface waters there. That was 10 years ago, but it hasn’t happened yet.
In part, that is because the commission can designate without much — or, indeed, any — scientific data on the streams, but it needs more information to issue permits.
Before the vote, Sakoda explained that there are three reasons the commission can designate a surface water area.
One is evidence that the amount of water being generated by the system is declining, without respect to droughts or diversions.
Another is that diversions are reducing the ability of streams to assimilate pollution.
“No evidence was presented” for either position, he said.
Ironically, in the contested case over Na Wai Eha stream flows, the party with most to lose — Wailuku Water Delivery Co. — did argue that the flows are declining.
However, a third, nonscientific reason also was available to the commission — that a clear public dispute over the water exists.
The Sierra Club, Hui O Na Wai Eha and Maui Tomorrow Foundation all testified that the contested case proves that a dispute is active.
There was also another trigger for designation, based on a Supreme Court decision: The commission can take control when there is a demonstrated interconnection between surface waters and high-level impounded groundwater — water trapped when lava dikes form natural reservoirs in the slopes of the mountains.
That case exists at least for streams flowing out of Iao Valley, Miike said.
The amount of water flowing in the streams of Na Wai Eha is at least 50 million gallons a day.
Designation gives the commission the power to order the operators diverting water — Wailuku Water and Hawaiian Commercial & Sugar Co.— to install flow meters or other devices for data about the surface system.
Testimony taken during the contested case over instream flow standards, which concluded earlier this month, revealed that many fundamental questions remain about how much water flows in the four streams draining the West Maui slopes, and how the different streams work.
The petition to designate the surface waters of Na Wai Eha was brought by Hui O Na Wai Eha and Maui Tomorrow Foundation, which also petitioned for the commission to determine instream flows. Both petitions are supported by Maui County and the Office of Hawaiian Affairs.
The commission has several dockets open on the ground and surface waters of West Maui. Although administratively separate, Thielen said the commission will consider them as a package, because physically the water sources interact.
• Harry Eagar can be reached at email@example.com.
Iao Stream is a sparkling clear flow before it hits an intake for the Iao-Waikapu Ditch diverting water from the stream to the old Wailuku Sugar Co. irrigation system at a weir above Kepaniwai Heritage Gardens.
The Maui News / MATTHEW THAYER photo
Fact BoxWATER USE ISSUES
Five petitions were before the state Commission on Water Resource Management concerning fresh water on Maui:
• To set permanent instream flow standards for 27 East Maui Streams; brought by Na Moku Aupuni O Koolau Hui, Beatrice Kekahuna and Marjorie Wallet.
Status: Information packets being distributed to interested parties this month. Public
fact-gathering meeting, 5-9 p.m. April 10 at Haiku Community Center.
• To designate Iao and Waihee aquifers as groundwater management areas; brought by Maui Meadows Homeowners Association.
Status: Iao aquifer was designated in 2003; designation of Waihee aquifer deferred in 2004.
• To set permanent instream flow standards in Na Wai Eha; brought by Hui O Na Wai Eha, Maui Tomorrow Foundation.
Status: Contested case
hearings completed; pending hearing officer’s decision.
• To set permanent instream flow standards for Honokohau, Honolua streams; brought by Maui Land & Pineapple Co.
Status: Under way.
• To designate Na Wai Eha a surface water management area; brought by Hui O Na Wai Eha, Maui Tomorrow Foundation.
Status: Designated by commission on Thursday; permit application window to open as soon as action is officially published.