Attorney: Water commission ‘wilted’

Panel: Decision strikes a balance between values, responsibilities The Maui News June 11, 2010 By ILIMA LOOMIS, Staff Writer The state Commission on Water Resource Management on Thursday ordered 12.5 million gallons of water per day be allowed to flow in the Na Wai Eha streams in the West Maui Mountains, about one-third of the amount that had been proposed. The commission majority said the decision represented a balance between the values and responsibilities the law required them to consider. Chairwoman Laura Thielen said in a statement that even if 100 percent of the water were diverted, it would still not be enough to meet demands. But contested hearings officer Lawrence Miike, also a commission member, issued a scathing dissenting opinion that accused the water panel’s majority of protecting the interests of private corporations over the public streams. “By its decision, the majority has failed in its duties under the constitution and the state water code as trustee of the state’s public water resource,” Miike wrote. Reacting to the order, environmental groups and Native Hawaiian taro farmers who had initiated the legal effort to restore the streams said they were deeply disappointed. Isaac Moriwake, attorney for Earthjustice, which represented the groups, said the water commission had “wilted” under pressure from corporations. Officials from Hawaiian Commercial & Sugar Co., which has argued that a loss of water could lead to the demise of the plantation, had a cautiously positive response. HC&S General Manager Chris Benjamin said the decision would reduce water available for agriculture, but that the 12.5 mgd stream flow ordered by the commission was “dramatically improved” from the previous proposal that would have restored three times that much. Mayor Charmaine Tavares said she was still reviewing the decision but was “grateful” the commission had granted the county’s water-use permits in their entirety. “It appears the commission did its best to balance in-stream uses and off-stream uses, as the state water code and constitution require,” she said. Thursday’s action addresses a yearslong dispute over the establishment of minimum flow standards for the four streams that run out of the West Maui Mountains into the central valley. It comes less than a month after the water commission ordered the return of some water to East Maui streams in a compromise between environmentalists and agricultural and residential users. That compromise allowed more water to be returned to streams during the island’s wet season, less during dry times. About 60 million to 70 million gallons per day are currently diverted from Na Wai Eha streams. The commission’s decision sets specific flow standards for each stream, with separate standards for north and south Waiehu streams. Iao and Waikapu streams, which often run dry below their diversions, would remain at current levels. For the other streams, flows below the diversions would be set at: * 10 million gallons per day for Waihee River. * 1.6 mgd for north Waiehu Stream. * 0.9 mgd for south Waiehu Stream. That’s more than the amount that currently flows the length of those waterways to reach the ocean. Moriwake noted several of the streams often are left completely dry below the plantation water diversions. But the standards are still less than would flow through the streams under natural conditions, even on their driest days. Miike noted that the lowest average natural flow recorded for Waihee River is 14 million gallons per day, measured above the diversions – 4 mgd more than would be released under the commission’s order. “These flows do not qualify as ‘restorations,’ ” he wrote in his dissent. Miike said state law required the commission to protect the stream’s natural resources and traditional uses above “off-stream” users who divert water for business or residential purposes. But he said the Na Wai Eha decision “turns all of these responsibilities on their heads.” Wherever an uncertainty existed, the other commissioners chose to protect off-stream users and private commercial purposes, and provided “the least protection feasible or no protection at all to the waters of Na Wai Eha,” he wrote. The water released to the streams was no more than “leftovers,” he added. The commission majority responded that Miike’s comments were “unfortunate,” and didn’t reflect the careful thought and deliberative process that led to their decision. “As in any difficult decision, reasonable minds may reach different conclusions,” they wrote. Moriwake called the decision a “miscarriage of justice.” “In the 21st century, the commission majority is still letting plantation politics, rather than the law, rule our most precious resource,” he said. Maui Tomorrow Executive Director Irene Bowie said she was “very, very disappointed.” “We think it’s a shortsighted, political decision, and we think it flies in the face of sound water management,” she said. John Duey, president of Hui O Na Wai Eha, said the decision was “terrible.” While the state water code requires the commission to give priority in-stream water uses, commercial off-stream users came first under the decision, he said. “It’s totally frustrating,” he said. “It’s unbelievable that they come up with this decision, when it’s not following their own law.” HC&S’s Benjamin said the decision would result in “significantly less” water for the plantation. He also said he was concerned the order also would require the plantation to make costly upgrades to its water systems. But he added that he was pleased the commission recognized the importance of the water to off-stream users, including farmers, businesses and residents. “On initial review . . . the commission’s ruling, along with recent positive operating momentum at HC&S, seems to have left us with a fighting chance to survive,” he said.