PAIA - The state Commission on Water Resource Management has scheduled decision-making on applications for existing use withdrawal permits from Na Wai Eha for April 20 to 21, but at a hearing Wednesday, almost all parties asked the commission to go slow.
Existing users are asking for a total of 61 million gallons a day from the Iao, Waihee, Waiehu and Waikapu streams. Almost all the 125 applications have been challenged. The hearing was to allow challengers and applicants to state their cases.
Not nearly as much as 61 mgd is available, but there could be even less than the 42 mgd to 55 mgd estimated by Wailuku Water Co., which manages the delivery system.
Neal Fujiwara, a member of the state Commission on Water Resource Management, asks a question Wednesday afternoon as fellow commissioner Sumner Erdman listens. The meeting at the Paia Community Center was for challengers and applicants to state their cases on proposed existing use withdrawal permits from Na Wai Eha, the four waters of Iao, Waihee, Waiehu and Waikapu streams.
The Maui News / MATTHEW THAYER photo
That's because the commission earlier directed that about 14 mgd be returned to the streams. But that in-stream flow standard order is being appealed.
Should the courts order the commission to restore even more water, then the shortfall could grow.
Furthermore, holders of certain water rights - dozens, or even hundreds of whom have not applied for withdrawal permits - go to the head of the line, ahead of all other users. And their claims, which go back to the Great Mahele, cannot be extinguished.
So lawyers Pam Bunn and Isaac Moriwake, who have been working for years to restore water to streams and to make sure kuleana users get water, found themselves arguing the decision that is supposed to accomplish that be held back.
Bunn represents the Office of Hawaiian Affairs. Moriwake, of Earthjustice, represents Hui O Na Wai Eha and the Maui Tomorrow Foundation.
Kaneloa and Johanna Kamaunu, who refuse to apply for permits, took an even more extreme position. They claim rights as kuleana owners on both sides of their family in Waihee, and as far as they are concerned, the process is backwards.
"We don't have to get your OK," said Kaneloa Kamaunu, a taro farmer. "The streams should be flowing . . . If the state and county and government agencies want water, they should come to us."
For such a touchy subject, the
hearing was not only mellow but almost invisible. The commission scheduled two full days, and allowed for two more next week, in case of need. But at most a couple of dozen people showed up. Police officers were stationed in each corner of the room for Wednesday afternoon's session, and they almost outnumbered the testifiers.
Commissioner Neal Fujiwara, who chaired the meeting along with Sumner Erdman, finished the morning session at 10:30. It had been scheduled to go until noon.
But although few spoke, those that did handed the commission a full bag of contentious issues. Attorney Paul Mancini, representing Hawaiian Commercial & Sugar Co., said: "There are no easy solutions." He cautioned the commission that first it must decide how to regulate Na Wai Eha - which means "the four waters" - as one system or as four separate hydrological units.
The choice could have consequences for the day-to-day operation of the distribution system, he said.
But once the approach is decided, Mancini said, some further consequential decisions must be made, even before anybody is given an allocation.
The applications in play are from existing users (new users come at the back of the line), but the 61 mgd they are asking for is not necessarily available, Mancini said.
He warned that taking monthly or yearly flow averages from the streams could overestimate how much water can really be harvested. In Iao Stream, for example, the diversions cannot handle more than 20 mgd, but the flow can reach 80 mgd and sometimes much more.
Picking the incorrect approach could "create unnecessary shortages," he said.
For example, Mancini said, suppose an applicant asked for 200,000 gallons per day.
To determine how much is available, the commission could choose a benchmark, or a percentage of a stream's base flow.
Using such a formula, the commission could determine that the applicant would get 50 percent of his request for withdrawal, or 100,000 gallons daily.
Yet, said Mancini, while 200,000 might not be available all the time, more than 100,000 gpd might be available most of the time.
"Looking at the monthly flows or the yearly flow fails to relate an accurate picture of the water that is available," he said.
Besides the still open question - as HC&S and Wailuku Water see it - about how much water is really there, Moriwake raised the issue of mitigation.
He said the Waiahole Ditch decisions made it clear that water diverters must mitigate system losses, and they should do so sooner rather than later, he said. Better reporting is needed to understand the losses and actual availability, he added.
Since the commission is short of resources - a position that Fujiwara and Erdman agreed with - it would not be an efficient use of commission staff to develop a permit regime, only to have the court upend its assumptions.
"I don't see any magic in April," the month designated for decision-making, Moriwake said. "The parties should consider taking it slow here."
* Harry Eagar can be reached at firstname.lastname@example.org.