Officer urges more water returned to streams

East Maui stream flow increases still ‘a gross imbalance’ according to Native Hawaiian cultural practitioners

The hearings officer in a contested case proceeding over the diversions of water from East Maui through the East Maui Irrigation system of ditches, tunnels and siphons has called for the return of 26 million gallons a day to 12 streams. This photo was taken in January 2016 in Haiku. -- The Maui News / MATTHEW THAYER photo

The hearings officer in a contested case proceeding over East Maui stream flows has recommended restoring 26.5 million gallons a day to 12 streams, which East Maui taro farmers, Native Hawaiian cultural practitioners and their attorneys complained still represented “a gross imbalance” in water allocation in favor of Alexander & Baldwin.

The contested case process over diversions of water from more than 20 streams by East Maui Irrigation for cultivation of sugar by Hawaiian Commercial & Sugar Co. goes back to 2001. Na Moku Aupuni o Ko’olau, a community of taro farmers, fishermen, hunters and traditional practitioners, represented by the Native Hawaiian Legal Corp., argues that the diversions by the A&B susidiaries impact life in the streams, taro growers and other cultural practices and traditions.

Lawrence Miike was named hearings officer for this proceeding in January 2014 and released his initial recommended findings of fact, conclusions of law and decision and order in January 2016 — without considering the closure of HC&S, which was announced earlier that month. Those recommendations called for restoring 16 mgd to 10 streams.

In March 2016, the State Commission on Water Resource Management ordered Miike to reopen the proceeding to consider the impacts of HC&S’ closure, which occurred in December. The water commission will be the final arbiter and set the final stream flows on state land, from which EMI is drawing water.

Miike, a former water commissioner, issued his 174-page amended report July 28, which called for releasing 8.5 mgd more than the initial findings. He called for increasing flows to 12 of the 22 streams diverted by the 140-year-old EMI ditch-tunnel-siphon system. Six streams would remain undiverted with natural flows — Makapipi, Wailuanui, Waiokamilo, Palauhulu, Hanehoi/Puolua and Honopou streams.

Stream flows in East Maui Irrigation’s ditch system have diminished significantly since the shutdown of sugar operations. EMI has reduced flows in the Wailoa Ditch to 20 million to 25 million gallons a day to meet the needs of the county water department and Alexander & Baldwin’s limited current needs, a proposed decision and order on East Maui stream diversions released at the end of July said. This photo was taken in January 2016. -- The Maui News / MATTHEW THAYER photo

For nonstream water diversion users, the proposed decision put maximum water requirements at 83.75 mgd for A&B’s post-sugar diversified agricultural program on 27,000 acres and 16 mgd for the county Department of Water Supply for domestic and agricultural uses.

A&B’s amount was less than the 115.4 mgd, which included transmission system losses, sought by the company at full build-out for its diversified agriculture plans. A&B had been receiving 113.7 mgd from 2008 to 2013 from the diversions, the report said.

During evidentiary hearings in February and April, A&B outlined its plans for diversified agriculture and irrigation requirements for each sector, which included pasture; dairy; forestry; orchard, beverage and row crops; and pongamia.

“The forecasted water requirements continue to evolve and will not become final ‘until every acre has been planted back in another agricultural use,’ ” A&B said in the report.

“It is unknown whether every single one of these diversified agricultural uses will come to fruition because so many basic questions about the company’s potential agricultural operations remain unanswered,” A&B said.

The company added that all prospective lessees have raised the issue of water for irrigation, and “A&B’s current inability to provide assurances regarding whether and how much irrigation water can be made available to lessees from the EMI ditch system is a major obstacle to procuring commitments from prospective lessees who need some assurance in order to justify committing the necessary capital to develop a new agricultural operation.”

Na Moku and its lawyers complained that not enough information was provided by A&B on its plans for the former sugar lands to justify the recommended water diversions.

“The proposed decision and order fails, yet again, to balance restored in-stream uses with off-stream diversions,” Summer Sylva, a Native Hawaiian Legal Corp. staff attorney, said Friday. “On the one hand, it restores only 8 mgd more (for total restored flows of 26 mgd) to support myriad in-stream uses, including constitutionally-protected public trust purposes, in the originating East Maui watershed.

“On the other hand, it sanctions the off-stream use and diversion of 116 mgd for one, commercial entity (A&B) to pursue an admittedly speculative diversified agricultural proposal for its 26,000 acres of former cane lands, most of which lie fallow at the moment.”

Sylva said that A&B received water allocations “despite no actual need, no business plan, no market analysis and no economic impact assessment.”

“There is no basis to compromise flows in any of the streams” with such “speculative data” for A&B’s commercial plans, she said.

Sylva also complained that Miike’s proposed order did not restore any flow to Honomanu Stream, which was identified as a high-priority stream for restoration by the state Division of Aquatic Resources and Na Moku.

Ed Wendt, Na Moku spokesman, said Friday that farmers are worried about having sufficient water because the proposed decision “allows commercial diverters to be the gatekeepers.”

He said that “after 140 years of diversions and decades of water commission and court hearings, the decision is ‘Leave some streams undiverted until HC&S needs them.’ ”

Miike’s proposed order calls for keeping Hanawi, Waiohue, Kopiliula/Puakaa, East Wailuaiki, West Wailuaiki and Waikamoi streams undiverted “until further notice.” These streams will remain undiverted until increased flows are required to meet expanding irrigations needs; the streams could then be reduced to minimum stream flows necessary to sustain life, Miike’s proposed order said.

“East Maui taro farmers are being told to keep sharing,” Wendt said. “If flows don’t meet their constitutionally protected needs, they have to figure it out, and restore stream life while they’re at it. We have been struggling for so many years, our family members have died along the way. This is so wrong.

“Our constitutional rights are still taking a back seat to A&B, who is still calling the shots.”

Sylva concurred, adding that the water commission has “essentially proposed relinquishing its role as the primary guardian of our public trust resources, our East Maui streams, to A&B, who has its blessing to divert any stream flow amounts above the minimum any time it needs.”

She also found it insulting and telling that Miike’s proposed order called for East Maui stream users “to develop a system of reasonable sharing” because the flows in the six undiverted streams may not meet all of their needs all of the time.

“Hawaiian practitioners and taro farmers have always shared the streams,” Sylva said. “An order to share was wholly unnecessary; insulting really.

“But it seems sharing is, and remains, the burden of Hawaiians only.”

A&B spokesman Darren Pai said Tuesdsay that Miike’s proposed decision and order is still being reviewed but “generally speaking, it appears hearings officer Miike recognized our plans to transition the former sugar cane lands into diversified agricultural uses and that this transition will occur over time.”

He said A&B has made “significant progress” in agricultural diversification, including the development of grass-fed cattle ranching, growing of energy crops and working with the county on a new agricultural park. By the end of 2017, A&B’s goal is to have 8,000 acres identified for specific agricultural uses, he said.

Parties to the contested case proceeding have until Friday to submit their exceptions to Miike’s proposed decision and order, which will be heard by the commission.

* Lee Imada can be reached at leeimada@mauinews.com.

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