- Associated Press - Saturday, January 30, 2016

WAILUKU, Hawaii (AP) - The hearings officer in the East Maui watershed contested case is calling for the restoration of 18 million gallons of water a day to 10 streams currently being diverted mainly for Hawaiian Commercial & Sugar Co. operations - but he did not take into consideration the impending closure of the plantation at the end of 2016.

Hearings officer Lawrence Miike was unaware of the closure when putting the final touches on the 154-page proposed findings of fact, conclusions of law and decision, which officially was filed Jan. 15, said state Commission on Water Resource Management officials. Exactly how the new development impacts the report and future actions by the state water commission in setting stream flows for the region remains unclear, The Maui News reported (https://is.gd/jSPBfK).

Dean Uyeno, head of the stream protection and management branch of the water commission, said that even if Miike were aware of the closure, he could not have considered it. The hearings officer can base his report only on the information received as part of the process, which included 15 days of hearings on Maui in March and April with 52 witnesses and 550 exhibits.

But there was no mention of the closure of the plantation during the process; HC&S; parent company Alexander & Baldwin made the announcement earlier in January.

All parties in the contested case have until Feb. 12 to offer their comments on the report and could address the sugar plantation’s closure, said Uyeno. However, the water commission will be restricted to making its stream flow determinations based on the record - which does not include the HC&S; closure.

As far as sending the case back to the hearings officer in light of the new major development, Uyeno said he has not seen that happen in his 15 years with the water commission.

“It’s really interesting,” said Jonathan Starr of Kaupo, one of seven members on the water commission. “It’s a really complex matter, and all the parts are continuing to move.”

Miike’s report calls for restoring 18 mgd to 10 streams - Wailuanui, Honopou, Hanehoi/Puolua, East Wailuaiki, West Wailuaiki, Waikamoi, Waiohue, Hanawi, Kopiliula/Puakaa and Makapipi. Those were among a dozen streams Na Moku Aupuni O Ko’olau, a community of taro farmers, fishermen, hunters and traditional practitioners, specifically cited for restoration in its call for a contested case hearing.

(As for the other two streams, Palauhulu Stream flows were not adjusted in the report, and HC&S; says it no longer diverts water from the Waiokamilo Stream.)

The 18 mgd is more than is currently being restored to the streams. Under 2008 and 2010 decisions, the water commission ordered a total of 13.95 mgd of water restored to 12 streams during the wet winter months and 5.61 mgd during the dry summer months.

This contested case hearing process began in 2001 when Na Moku filed petitions to amend the flow of 27 East Maui streams. (Miike’s report says that there are actually 25 streams, calling Waikani a waterfall on the Wailuanui Stream and Alo Stream a tributary of the Waikamoi Stream.)

The streams have been diverted by Alexander & Baldwin through a series of ditches, tunnels and siphons built in the 1870s to water sugar cane fields in central and upcountry Maui. East Maui Irrigation, a subsidiary of A&B;, manages the water system for use by HC&S.; Maui County also draws from the system for drinking and agricultural water.

The report says that the system - with 388 intakes, 24 miles of ditches and 55 miles of tunnels - captures the entire base stream flow at nearly all of the diversions with a system capacity of 450 mgd. From 2008 to 2013, HC&S; received an average of 113.71 mgd from the system, the report said.

Na Moku, which is represented by the Native Hawaiian Legal Corp., argues that the diversion of water impacts life in the streams, taro growers downstream and other cultural practices and traditions. Miike’s report determined that there are about 50 acres of taro loi in Keanae, Wailua, Honopou, Hanehoi and Makapipi and 44 acres in other agricultural uses.

In 2008, the water commission restored a total of 4.5 mgd to six streams - Honopou, Hanehoi, Puolua (Huelo), Waiokamilo, Wailuanui and Palauhulu streams. It was characterized by the water commission as “a first step” toward reviewing stream flows in all 27 streams, the report said.

Water was restored to six more streams, out of 19 considered, in May 2010. The water commission chose to apply a wet season and dry season approach to restoration, calling for 9.45 mgd restored in the winter and 1.11 mgd in the summer. The streams were Waikamoi, West Wailuaiki, East Wailuaiki, Waiohue, Hanawi and Makapipi.

Na Moku filed for a contested case following the decision but was denied by the water commission in October 2010. The Intermediate Court of Appeals overturned the denial in November 2012, and Miike was appointed hearings officer for the contested case in January 2014.

Although the contested case arose out of the 19-stream 2010 case, Miike declared that the contested case would encompass all 27 streams in the initial petition to provide an integrated approach. He said the water commission’s decisions in the 2008 and 2010 cases did not “weigh the importance of the present or potential in-stream values with the importance of the present or potential uses of water for non-stream purposes, including the economic impact of restricting such uses.”

In coming up with his recommended stream flows, his report considered the maintenance of life in the streams, traditional rights that attach to properties along the streams, protection of traditional and customary Native Hawaiian rights, recreational activity and downstream user rights as well as non-stream uses by HC&S; and the water department, with economic impacts as a consideration.

Most of the 18 mgd will come out of the Koolau Ditch, which becomes the Wailoa Ditch from which the county draws to provide water for upcountry residents. The report says that the average daily use by the county Department of Water Supply is 7.1 mgd, which also includes nondrinking water for the Kula Agricultural Park. The water department can receive up to 12 mgd from the ditch with an option for an additional 4 mgd, according to its agreement with EMI.

The report concludes that unless the flow in the Wailoa Ditch falls below 34.4 mgd, the county allotment should not be affected and that ditch flows do not drop to those low levels very often. Average flow in the ditch between 1922 and 1987 has been 108.8 mgd with less than 42.46 mgd for only five days out of a year.

The main parties to the contested case were assessing the Miike’s report. Lawyers with the Native Hawaiian Legal Corp. said last week that they were working on their response to the report and did not have immediate comment. HC&S; officials also were digesting the report.

“Hearings officer Lawrence Miike’s proposed ‘findings of fact, conclusions of law and decision and order’ is a lengthy document, and we are giving it close review,” said Rick Volner, HC&S; general manager, in a statement.

“We understand that his analysis did not take into account HC&S;’ transition from sugar to diversified agriculture, which will begin in 2017, and was unknown at the time of the hearing,” he said.

Volner said that for “agriculture to continue on HC&S; lands, A&B; and any farmer who farms our land will need assurance that they have access to adequate, reliable and cost-effective supplies of water. No farmer will risk planting any crop without access to sufficient water.”

“We recognize that stream water should be used in the best interest of the community, and as we strive to keep the central plain of Maui green, we hope that our diversified ag model will have the support of the community as well,” Volner said.

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Information from: The Maui News, https://www.mauinews.com

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