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Group calls for restoration of water to streams

State water panel heard arguments to return to East Maui streams water diverted over decades for sugar

Summer Sylva of the Native Hawaiian Legal Corp. delivers closing arguments before the state Commission on Water Resource Management Monday at the Haiku Community Center. Sylva was representing Na Moku Aupuni O Ko‘olau Hui, a group of East Maui residents calling for restoration of flow to more than 20 streams that have been diverted for sugar cane cultivation. The commission heard final arguments in the 16-year-old case from Na Moku, Maui Tomorrow, Alexander & Baldwin and Maui County on Monday. Now, it’s weighing its decision. The Maui News / COLLEEN UECHI photo

Saying that “sugar got what sugar needed,” attorneys for a group of East Maui residents called on a state water panel to increase flow levels for streams long diverted for Hawaiian Commercial & Sugar Co. crops.

At a standing-room-only meeting at the Haiku Community Center on Monday, attorneys delivered their final arguments in a drawn-out contested case hearing that goes back to 2001. Summer Sylva, attorney for the nonprofit law firm Native Hawaiian Legal Corp. that is representing the East Maui group, said petitioners “have waited 16 years for this day.”

“These petitions were never solely about taro farming,” Sylva said. “The fact that only six of the 27 streams currently feed taro loi puts that myth to rest. . . . Our taro farmers are also fishers, hunters, gatherers, recreational users, admirers and stewards. . . . They filed these petitions on behalf of all these protected in-stream uses and all life supported by and dependent on this region’s bounty.”

After years of legal challenges and hearings, the state Commission on Water Resource Management is on the cusp of deciding whether to adopt the stream-flow recommendations of hearings officer Lawrence Miike, who issued his findings in August.

A decision in the case is crucial for residents who want to see the stream levels restored to support the plants, animals and subsistence lifestyle of East Maui. It’s also important for HC&S parent company Alexander & Baldwin, which says it needs to know how much water it will get to plan for a post-sugar-cane future of diversified agriculture.

David Schulmeister, attorney for Alexander & Baldwin, answers questions from the commission. The Maui News / COLLEEN UECHI photo

The group at the heart of the debate is Na Moku Aupuni O Ko’olau Hui, a community of taro farmers, fishermen, hunters and traditional practitioners in East Maui. In 2001, the group filed a petition to amend the flow of 27 East Maui streams that A&B had been diverting since the 1870s for its sugar cane fields in Upcountry and Central Maui.

Managed by A&B subsidiary East Maui Irrigation, the diversion system includes 388 intakes, 24 miles of ditches, 55 miles of tunnels and a capacity of 450 million gallons a day. Na Moku says that the massive system impacts stream life, taro growers and cultural practices.

In 2008 and 2010, the state water commission ordered 13.95 million gallons of water per day restored to 12 streams during wet winter months and 5.61 mgd during the dry summer months. Na Moku didn’t agree with the decision but was denied a contested case hearing. In 2012, the Intermediate Court of Appeals ruled that the group deserved a hearing.

After all sides made their case in March and April 2015, Miike called for the restoration of 18 mgd to 10 streams in January 2016. However, he hadn’t been able to take into account the closure of the sugar plantation, which A&B had just announced that month.

So, the commission ordered more hearings, and Miike issued his findings in July – amended in August – to recommend restoring 26.5 mgd to 12 streams, 8.5 mgd more than he’d initially called for. Miike proposed setting maximum water requirements at 83.75 mgd for A&B and 16 mgd for the county Department of Water Supply. That was less than A&B’s request for 115 mgd.

On Monday, A&B and the county agreed with Miike’s decision, but Na Moku and Maui Tomorrow called for more changes.

“Sugar got what sugar needed. HC&S got what HC&S needed,” Sylva said Monday. “It’s now 2017, and under the proposed decision before you, just like in 1988, leftover flows from HC&S’ existing diversions is still all the water that 10 of the 27 petitioned streams will be afforded.”

Sylva said that conditions during the time of sugar “are nothing like the conditions that exist now.” From 2004 to 2013, the EMI system delivered an average of 126 mgd to sugar cane fields, according to Miike’s report. But now both HC&S and the county’s combined needs are down to 20 mgd. She called Miike’s proposed decision “wrong, unjust and subject to reversal and appeal.”

“Half of the petitioned streams get zero protection, without any justification,” she said. “The (Hawaii) Supreme Court will not stand for status quo IIFS (interim in-stream flow standard) values.”

Na Moku had several recommendations for the commission, including restoring natural undiverted flows to Nahiku and Keanae, which EMI said it has stopped diverting from; restoring Honopou and Hanehoi, two taro-feeding streams in Huelo; and restoring natural, undiverted flows to Honomanu stream and maximum flow to several other streams that the county doesn’t divert or rely on.

A&B and EMI attorney David Schulmeister, on the other hand, thought Miike’s proposal was “a reasonable recommendation” and took care of the taro streams.

“It deserves to be given a chance to see how it’s going to work in practice,” Schulmeister said.

In response to Sylva and Maui Tomorrow attorney Isaac Hall, who complained that A&B’s agricultural plans were unclear and lacked time frames, Schulmeister said “it’s very difficult to have timelines” when there’s still no decision on how much water A&B will get.

“It’s a difficult challenge to find new uses for the number of acres we’re talking about,” he said. “We do have a catch-22 situation here where when you’re trying to interest potential lessees in farming these acres, they do want to know what the source of water is going to be. It’s very hard for them to justify investing if they don’t know.”

When asked if A&B could pump more water from its brackish water wells, Schulmeister said the water was available, but that “the question is going to be, how salty is the water?” Sugar cane was tolerant of brackish water, but more sensitive crops may not be in the future, he said.

During Schulmeister’s arguments, frustrated residents held up signs of protest and interrupted to complain that he wasn’t answering questions directly.

Suzanne Case, who chairs both the water commission and the state Board of Land and Natural Resources, said the commission would start weighing the arguments and that no more public meetings were scheduled.

The commission has no set timeline for its decision.

* Colleen Uechi can be reached at cuechi@mauinews.com.