Ruling awaited in water dispute – The Maui News

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Lawyers spar over how much water to return to West Maui streams

By HARRY EAGAR, Staff Writer

WAILUKU – About 120 people crowded into Kanda Hall at Iao Congregational Church on Thursday morning for what may be the last big public session in the five-year contested case over the waters of Na Wai Eha.

The five parties to the case each had 30 minutes to make closing arguments and raise exceptions to the draft in-stream flow standards proposed by hearings officer Lawrence Miike, who is also a member of the state Commission on Water Resource Management.

As much as 70 million gallons per day is diverted from the Iao, Waihee, Waikapu and Waiehu streams, and Miike has proposed restoring nearly half that amount to the streams for "mauka-to-makai" stream flow. The commission will now consider the record and issue a decision about how much water to restore.

In recent days, street-side rallies have broken out backing one position or the other. The stakes are big.

Attorney Isaac Moriwake of Earthjustice, representing the petitioners who initiated the review of in-stream flow standards, quoted one of his witnesses, Alfred Santiago, as saying of free-flowing streams and healthy loi: "It’s our identity. It makes us feel more whole."

Moriwake represents Hui O Na Wai Eha and the Maui Tomorrow Foundation. For intervener Office of Hawaiian Affairs, attorney Pamela Bunn said, "Cold, free-flowing water is a necessity for kalo and a cultural necessity for the well-being of the Native Hawaiians."

The streams have not flowed freely for a century, and Hawaiian Commercial & Sugar Co. General Manager Chris Benjamin put it bluntly. The amount of water proposed to be restored is too much, he said. The sugar plantation projects a loss of $25 million this year.

"Our board and our shareholders are not sitting idly by," he said. "The directors are committed to make a decision by the end of this year."

Benjamin said he remains optimistic that over a period of years, HC&S can remake itself as a renewable energy plantation, but it needs enough water to stay in sugar for the transition.

Miike’s proposal "would result in a shutdown in the very near term."

Benjamin disputed Moriwake’s earlier scoffing that threats by HC&S that it would close, taking with it 800 jobs and 7 percent of the island’s electricity generation, were "a boogeyman." The plantation is on the edge, he said.

Moriwake described that as "blackmail."

What nobody mentioned, although everybody in the room knew it, is that HC&S is probably going to lose a portion of its East Maui water, too. A separate review to set in-stream flow standards – though not via the mechanism of a contested case hearing – for East Maui is under way. The commissioners, and many of those in the audience, were planning to attend a meeting on that subject Thursday night in Paia.

HC&S and Wailuku Water Co. are joined in a rear-guard action to preserve as much of their access to water as possible. Each party suggested a revision to the standards for Iao and Waihee, the biggest streams. The proposals were different in detail but very close. For Wailuku Water, attorney Paul Mancini said that even with these smaller withdrawals, some existing "reasonable and beneficial" users would get no water on a significant number of days.

However, he said that under the draft, HC&S would get no water on nearly half the days of the year. Even some kuleana users who currently get water every day would experience dry days, he said.

However, there are uncertainties even then. Wailuku Water expects that, if stream flows are restored to a high-enough level, old kuleana claims will be revived, leaving even less for other off-stream users. Mancini suggested that restoring about 5 million gallons per day in Waihee Stream and about 4 million gallons daily in Iao Stream would meet the widest range of interests.

Among the "other" off-stream users is Maui County, and Deputy Corporation Counsel Jane Lovell warned that the draft would mean that a reliable supply of raw water would not always be available at the Department of Water Supply’s 3.2-mgd Iao treatment plant. Nor would there be reliable water for a planned Waiale 9 mgd treatment plant.

Moriwake, though, said the Waiale plant should not even be considered, since it has not begun the process of being adjudged a reasonable and beneficial use. He also disputed the county position that municipal water is included in "domestic" use, which is supposed to get preference over commercial uses.

The county found itself in the middle, both supporting and opposing the plantation users on one side and the natural habitat/cultural preservationist claims on the other.

Some time also was spent debating whether HC&S’ new calculations of the impact of the draft on its operations could be admitted after the record was closed. HC&S attorney David Schulmeister argued that the water delivery system is so complex that it would have been impossible for the plantation to calculate its potential effects until after it had Miike’s proposals in hand. Those were not written until the evidentiary portion of the case was closed.

Laura Thielen, chairwoman of the Department of Land and Natural Resources and also of the state Commission on Water Resource Management, said the commission would take that under advisement when it undertakes its judicial review of the entire case. She did not indicate when the commission would make its decision, but considering that the testimony that was presented and will have to be reviewed occupied 24 days, it will take awhile.

Bunn made the most detailed of all the rebuttals, using charts to show that HC&S could replace the "free" water it has been getting at a minimal cost. Reopening Well 7 would provide water at something on the order of 12 to 15 cents per thousand gallons, she said.

On Wednesday, the commission had taken a tour of Na Wai Eha (the four waters) for a firsthand look at the diversions, the dry streambeds and the condition of the watershed, which is owned by Wailuku Water.

Commission member Sumner Erdman was shocked by the condition of the watershed, which is being invaded by alien plants.

"Something is missing that everyone in the room should think about," he said. "There is no comment about the watershed. If we continue to degrade (the watershed) at the rate we are, there won’t be any water, and any decision we make is useless."

* Harry Eagar can be reached at heagar@mauinews.com.

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