WAILUKU - In what appears to be a blow to East Maui Native Hawaiian taro farmers and environmentalists - and a potential much-needed win for struggling Hawaiian Commercial & Sugar Co. - the state Commission on Water Resource Management staff has recommended that water diverted by HC&S be restored to only one of the 19 streams it uses to irrigate its sugar crop.
The staff findings are only recommendations, but Native Hawaiian Legal Corp. attorneys said on Saturday that they believe the seven-member commission will rely heavily on the staff assessments and recommendations when it renders its decision, most likely during a public meeting scheduled for Wednesday in Paia.
The meeting will begin at 10 a.m. at the Paia Community Center with a staff presentation and time for questions from Water Resource Management Commission members, Chairwoman Laura Thielen said on Saturday. Thielen is also director of the state Department of Land and Natural Resources.
The public will get a chance to testify beginning at 1 p.m., and Thielen said she expects her fellow commissioners to reach a consensus that evening or the next day, depending on how many people want to speak.
Thielen said she received the 56-page report, signed by Deputy Director Ken Kawahara, last week.
Thielen said she thinks that the staff "did a very good, very thorough job," but she will listen to other commissioners' questions and public testimony before making a decision on how she will cast her own vote on the issue. She also noted that the Native Hawaiian groups did get more than 12 million gallons of water a day restored to streams in the same watershed last year through an almost identical commission process.
An attorney for the taro farmers seeking to have the stream water restored called the recommendation "ludicrous."
"My first reaction was, 'This is the result of eight years of work?' " said Native Hawaiian Legal Corp. attorney Alan Murakami on Saturday.
He and attorney Moses Haia filed the litigation on behalf of Na Moku Aupuni O Koolau Hui and taro farmers Beatrice Kekahuna, Marjorie Wallet and Elizabeth Lapenia.
The plaintiffs demanded that the state establish new instream flow standards for the East Maui watershed to either end, or significantly reduce, HC&S' 125-year-old practice of diverting up to 160 million gallons a day from all the East Maui streams.
Maui County also takes water from the streams for public consumption.
Fourteen months ago, the commission ruled in favor of the Native Hawaiian groups and restored at least 12.21 million gallons a day to eight streams across the watershed, which included the Honopou, Hanehoi, Piinaau, Waiokamilo and Wailuanui streams.
Thielen said that the staff on Wednesday will also give an update on how that project is coming along. Some of those changes still require the construction of new infrastructure, such as pipes or culverts, she said.
Wednesday's commission meeting is intended to deal with the remaining 19 streams in the East Maui system. According to the report, which can be found online at hawaii.gov/dlnr/cwrm/submittal/sb0912C1.pdf, the staff recommendations call for instream flow standards for Makapipi stream to be restored to at least 0.32 million gallons a day.
"They are basically going to leave everything status quo, except the one stream," Murakami said. "That's ludicrous. They can't give such short shrift to Native Hawaiian rights and ignore the impact on Native Hawaiian traditions and cultural practices. They are basically saying the diversions are OK because 800 (HC&S sugar plantation) jobs are on the line; and that is a shallow capitulation."
HC&S and its subsidiary, East Maui Irrigation, are faltering because of the combination of an ongoing three-year-old drought and the water litigation. Sugar production was down this year to 126,000 tons from the usual 200,000 tons, and taking away the water could very well result in the demise of Hawaii's last remaining active sugar mill, company officials have said.
HC&S reported losses last year of $13 million. And the company faces another major threat to its water irrigation supply from a lawsuit before the same commission from Native Hawaiian groups in Central Maui for Na Wai Eha, or the four main streams of Waikapu, Waihee, Iao and Waiehu.
A final decision from the Commission on Water Resource Management in the Na Wai Eha case is expected early next year, said Earthjustice attorney Isaac Moriwake on Saturday. Moriwake is representing Na Wai Eha's Native Hawaiian plaintiffs.
HC&S opponents have maintained that the company could dig into its parent company's pockets (Alexander & Baldwin Co.) and get all the water it needs by pumping from its wells.
Native Hawaiian groups and their environmentalist nonprofit partners have said that restoring all or most of the water will not only allow the rebirth of the taro crop, but also restore flora, fauna and aquatic creatures to streambeds that are now little more than a trickle in many places because of the sugar field and county water supply diversions.
HC&S cultivates roughly 30,000 acres from both the East and Central Maui watersheds. The 19 East Maui streams under discussion Wednesday will be Waikamoi, Alo, Wahinepee, Puohokamoa, Haipuaena, Punalau/Kolea, Honomanu, Nuaailua, Ohia, west Wailuaiki, east Wailuaiki, Kopiliula, Puakaa, Waiohue, Paakea, Waiaaka, Kapaula, Hanawi and Makapipi.
Thielen said, yes, the commission probably will lean on its staff, whom she's overseen throughout this process. "They have been living and breathing this for years now," Thielen noted.
Still, the independent Commission on Water Resource Management has the authority to basically do whatever it pleases with the findings. Members could vote the report up or knock it down or move to send it back to make changes, Thielen said.
Haia said that the water commission staff has essentially ignored all of EMI's wasteful water practices, such as its leaky open ditches. And commissioners have an obligation to hold the staff accountable for such oversights, he said.
"Obviously, we're going to make our arguments Wednesday, but ultimately what I see here through my experience over the last eight years is that the commission, like the Board of Land and Natural Resources too, doesn't really want to find out how much water HC&S really needs for its activities. All it cares about is the argument that the sky is going to fall if you put any more water back in the streams."
HC&S employees have joined the debate, saying their livelihoods and the local economy are on the line. The County Council is also scheduled to weigh in on the issue in the near future, politicizing the issue further.
HC&S representatives reached Saturday had not seen the commission staff recommendations yet and were unable to comment.
In a news release, the DLNR said its water commission has the responsibility of establishing instream flow standards "to protect the public interest in streams statewide." The department officials said that commission's ultimate goal is to strike a balance, somewhere, between the needs of nature and human beings.
* Chris Hamilton can be reached at firstname.lastname@example.org.