Commission on Water Resource Management

October 29, 2019 by Peter T Young 2 Comments

Waiāhole Ditch

In 1897, the Oʻahu Sugar Company established a large-scale sugar plantation on the dry, southwestern side of Oʻahu. Irrigation water for the sugar-cane plantation was initially pumped from the Pearl Harbor aquifer.

Because of the high pumping cost, the Oahu Sugar Company constructed the Waiāhole Ditch System to transport, by gravity, surface water from the northeastern side of the Koʻolau Range. The Waiāhole Ditch collection and delivery system was initially constructed during 1913-1916.

The system intercepts large amounts of dike-impounded ground water at high altitudes (above approximately 700 to 800-ft) that previously discharged to Waiāhole (and its tributaries Waianu and Uwao), Waikāne and Kahana Streams through seeps and springs.

The main tunnel through the Koʻolau Range was primarily designed as a transmission tunnel. The success of this tunnel in intercepting large amounts of dike-impounded ground water in the Koʻolau Range led to the construction of additional high-level ground-water development tunnels.

Between 1925 and 1935, six tunnels with headings directed into the Koʻolau Range were added to the ditch system to develop ground water stored in dike compartments. Four development tunnels (Uwao, Waikāne 1, Waikāne 2 and Kahana) were considered successful.

For nearly a century, the Waiāhole Ditch System has diverted an average of approximately 27-million gallons per day of water from the wet, northeastern part of windward Oʻahu, to the dry, central part of the island to meet irrigation needs.

This diverted flow consists of ground water gained from the connecting tunnels, the four development tunnels, and the trans-Koʻolau tunnel and of surface water gained primarily from Kahana Valley.

The flow diversion through the tunnel is pretty low tech; a redwood board determines the flow direction and amount. Depending on which marker the board is raised or lowered to, more or less water flows to leeward or windward areas.

If the board is raised, more water flows to the leeward side. Conversely, the more the board is lowered, the greater the amount of water that flows to Waiāhole stream.

The Waiāhole Ditch collection and delivery system is a 26.5-mile-long system, also called “the ditch,” extending from Kahana Valley on the Windward side to the Kunia area on the Leeward side.

The effects of Waiāhole Ditch diversions received significant attention in 1993, when it became known that large amounts of diverted water were not being used for irrigation and instead were being released into streams on the leeward side of Oʻahu. This coincided with the Oʻahu Sugar Company announcement of the closure of its sugar-plantation operations.

Windward stream water for leeward uses initiated a legal proceeding (Waiāhole Ditch Contested Case) before the Hawaiʻi Commission on Water Resource Management (CWRM) over rights to the water.

The Waiāhole case arose from the efforts of small family farmers and Native Hawaiians, led by citizen groups Hakipuʻu ʻOhana, Ka Lahui Hawaiʻi, Kahaluʻu Neighborhood Board, Makawai Stream Restoration Alliance and a coalition of supporters (collectively the “Windward Parties”), to restore streams originally diverted by Central O`ahu sugar plantations.

But large scale agricultural and development interests, including Campbell Estate, Robinson Estate, Kamehameha Schools, Dole/Castle & Cooke, and others, joined by the State, pushed to continue the flow of Windward water to leeward lands to subsidize golf course irrigation, short-term corporate agriculture, and housing development.

After seven months of administrative hearings, the Water Commission issued its first decision in 1997, which both the Windward and Leeward parties appealed to the Hawaiʻi Supreme Court.

The Windward Parties argued that not enough water had been restored to the streams, while Leeward interests complained that too much water had been returned.

In August 2000, the Hawaiʻi Supreme Court issued a landmark decision in the first appeal. Although the Court acknowledged the Commission’s efforts at stream restoration, it vacated the Commission’s decision and sent the case back to the Commission.

After holding more hearings, the Commission issued a second decision in December 2001, which the Windward Parties again appealed.

The Court ruled that much of the decision failed to comply with the State Water Code and public trust principles, and the Commission had failed to make sufficient findings, based on evidence in the record, to support its various rulings.

It ordered the Commission to reconsider the amount of water the Windward streams need to support native stream life and community uses, vacated permits the Commission had issued to Leeward interests, and ordered the Commission to make a new decision on the permits that followed from the evidence.

On July 14, 2006, the Hawaiʻi State Commission on Water Resource Management issued a split decision in the landmark water rights litigation over the stream flows diverted by the Waiāhole Ditch System on O`ahu.

Four members of the Commission (a majority) voted to largely maintain the allocations the Commission approved in its original 1997 decision, including extensive diversions for Leeward uses, such as corporate agriculture and golf courses.

However, two Commissioners issued a dissent criticizing the majority for failing to give more protection to Windward stream resources and uses.

As Water Commission Chair, I was happy to have authored the dissent (with significant assistance from the Attorney General’s office) and pleased that Chiyome Fukino, state Department of Health Director, joined me in the dissent.

In 2010, the Intermediate Court of appeals vacated the water use permit issued in the 2006 decision and remanded the case back to the Water Commission. (Lots of information here from USGS and EarthJustice reporting on the ditch system and Waiāhole Ditch case.)

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Byron Alcos, superintendent of the Waiahole Irrigation Co., shines a light pon the source of the Waiahole water-(star-bulletin)

Monument at the Waiahole Ditch announces the completion date and names of contractor Mizuno, his surveyor, stonemason, and workers-(hawaii-gov)

Waterfall at one of the water sources of Waiāhole Stream, windward O‘ahu, Hawai‘i-(USGS)

Waikane_Valley-Loi_Kalo-Bishop_Museum-photo-1940

Waiahole Ditch-Land-use and land cover-(USGS)

Waiahole Ditch-generalized geology-(USGS)

February 16, 2019 by Peter T Young Leave a Comment

Letting A Stream Be A Stream

The State Water Code provides for the Commission on Water Resource Management (Water Commission) to establish and administer a statewide instream use protection program.

Duties under this program include:
• Establishing instream flow standards on a stream-by-stream basis whenever necessary to protect the public interest in waters of the State
• Establishing interim instream flow standards
• Protecting stream channels from alteration whenever practicable to provide for fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses
• Establishing an instream flow program to protect, enhance and reestablish, where practicable, beneficial instream uses of water

Instream Flow Standard (IFS) is “a quantity or flow of water or depth of water which is required to be present at a specific location in a stream system at certain specified times of the year to protect fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses.”

The technical language of the law is complicated; I simplify this to say that the instream flow standard allows a stream to be a stream.

Unfortunately, for the most part, Hawai‘i does not have permanent IFS; our streams are monitored under Interim Instream Flow Standards (IIFS.)

Essentially this means that, years ago, the Water Commission allowed existing diversions to continue and whatever remained in the stream was the IIFS.

Lack of Instream Flow Standards has caused a number of litigations, Waiāhole being the most prominent. The Waiāhole water case and others have taught us that we need to do things differently.

The Hawai‘i Supreme Court emphasized in the Waiāhole case that instream flow standards serve as the primary mechanism by which the Water Commission is to discharge its duty to protect and promote the entire range of public trust purposes dependent upon instream flows.

Under the Constitution, the State has an obligation to protect, control and regulate the use of Hawaii’s water resources for the benefit of its people. In the Waiāhole case, the Supreme Court reaffirmed that the public trust doctrine applies to all water resources of the State.

The Court also identified three purposes or uses under the public trust doctrine: Maintenance of waters in their natural state (letting a steam be a stream;) Domestic water use (drinking water for you and me;) and Native Hawaiian traditional and customary rights.

Rather than react to the next litigation or crisis, we need to take proactive, comprehensive and collaborative approaches in developing instream flow standards for Hawai‘i’s stream systems.

While at DLNR, I Chaired the State Commission on Water Resource Management (the Water Commission.) We worked on several programs to develop a better understanding of Hawai‘i’s 376 perennial streams.

These programs included: Statewide Watershed Coding System – providing a framework for inventorying of surface water resource information; Stream Diversion Database – providing information for all diversions statewide …

Surface Water Information Management System – providing the informational foundation for instream flow standards; and Hawaii Stream Assessment through DLNR’s division on Aquatic Resources – the stream coding system.

The goal is to establish permanent instream flow standards for all streams across the state that are consistent and, to the extent practicable, based on scientific or measurable data, all in a manner that is understandable and transparent. It is anticipated that this methodology will avoid future, lengthy litigation, as experienced in the past.

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Stream-CWRM

February 1, 2015 by Peter T Young Leave a Comment

Kanawai

In ancient times, native Hawaiians drew their water supplies from fresh water streams, springs, lakes and shallow wells.

For centuries, Hawaiians recognized the life giving qualities and significance and value of water to their survival. Water is life; water is wealth.

You could draw water from only the upper parts of the stream. Bathing was to be done downstream. Damaging irrigation systems or harming the water source was severely punished. Water conservation was a preeminent law of the land. (HBWS)

The Hawaiian word for ‘law’ is kānāwai – it is interesting to note that the literal translation of kānāwai is ‘relating to water.’ Traditional Hawaiian law initially developed around the management and use of water. (Sproat)

The first laws or rules of any consequence that the ancient Hawaiians ever had are said to have been those relating to water. The rules were undoubtedly simple at first. The supply of water was usually ample to satisfy the requirements of the land; cultivation on a large scale for purposes of export was unknown. (Perry, Hawaiʻi Supreme Court)

In pre-Captain Cook times, taro played a vital role in Hawaiian culture. It was not only the Hawaiians’ staple food but the cultivation of kalo was at the very core of Hawaiian culture and identity. The early Hawaiians probably planted kalo in marshes near the mouths of rivers.

Over years of expansion of kalo lo‘i (flooded taro patches) up slopes and along rivers, kalo cultivation in Hawai‘i reached a unique level of engineering and sustainable sophistication. The irrigation systems enabled them to turn vast areas into farm lands, feeding a thriving population over the centuries before Westerners arrived.

Kalo lo‘i systems are typically a set of adjoining terraces that are typically reinforced with stone walls and soil berms. Wetland taro thrives on flooded conditions, and cool, circulating water is optimal for taro growth, thus a system may include one or more irrigation ditches, or ‘auwai, to divert water into and out of the planting area. (McElroy)

Dams that diverted water from the stream were a low loose wall of stones with a few clods here and there, high enough only to raise water sufficiently to flow into the ʻauwai, which entered it at almost level.

The quantity of water awarded to irrigate the loʻi was according to the number of workers and the amount of work put into the building of the ʻauwai. Water rights of others taking water from the main stream below the dam had to be respected, and no ʻauwai was permitted to divert more than half the flow from a stream. (Handy & Handy)

In some ʻauwai, not all of the water was used; after irrigating a few patches, the ditch returned the remainder of the water to the stream. (YaleLawJournal) By rotation with others on the ʻauwai, a grower would divert water from the ʻauwai into his kalo. The next, in turn, would draw off water for his allotted period of time. (KSBE)

Loʻi dependent on an ʻauwai also took their share of water in accordance with a time schedule, from a few hours at a time day or night up to two or three days. In times of drought the luna wai (water boss) had the right to adjust the sharing of available water to meet needs. (Handy & Handy)

With ‘contact’ (arrival of Captain Cook in 1778,) Western influence played into the management and use. Kingdom laws formalized and reduced Hawaiian customs and traditions to writing.

The Declaration of Rights and Constitution of 1839-40, which was the first Western-style constitution of the Hawaiian Kingdom, expressly acknowledged that the land, along with all of its resources, “was not (the King’s) private property. It belongs to the Chiefs and the people in common, of whom (the King) was the head and had the management of landed property.”

In 1860, an act was passed providing for the appointment in each election district throughout the Kingdom of three suitable persons to act as commissioners to decide on all controversies respecting rights of way and rights of water between private individuals or between private individuals and the government (the powers and duties of the commissioners were finally, by act of 1907, transferred to the circuit judges.) (Perry)

Then groundwater was pursued when James Campbell envisioned supplying the arid area of ʻEwa with water. He commissioned California well-driller James Ashley to drill a well on his Honouliuli Ranch. In 1879, Ashley drilled Hawaiʻi’s first artesian well; Campbell’s vision had made it possible for Hawaiʻi’s people to grow sugar cane on the dry lands of the ʻEwa Plain.

Subsequent well production expanded and diversified the collection and distribution of water. (Now, nearly all of Hawaiʻi’s drinking water comes from groundwater sources.

Constitution amendments in the 1978 Constitutional Convention (later ratified by the people,) put water as a public resource. Under the State Constitution (Article XI,) the State has an obligation to protect, control and regulate the use of Hawaii’s water resources for the benefit of its people.

Ground and surface water resources are held in public trust for the benefit of the citizens of the state. The people of Hawaiʻi are beneficiaries and have a right to have water protected for their use and/or benefit.

Legal challenges and subsequent decisions by the Hawaiʻi Supreme Court identified four public trust purposes: Maintenance of water in their natural state; Domestic water use of the general public, particularly drinking water; Exercise of Native Hawaiian traditional and customary rights; and Reservations of water for Hawaiian Home Lands.

In 1987, the State Water Code was adopted by the Hawaiʻi Legislature, which set in place various layers of protection for all waters in the Hawaiian Islands; it formed the Commission on Water Resource Management.

The Hawaiʻi Water Plan adopted by the Water Commission (that includes the Water Resource Protection Plan, Water Quality Plan, State Water Projects Plan, Agricultural Water Use and Development Plan and Water Use and Development Plans for each County) is critical for the effective and coordinated protection, conservation, development and management of the State’s water resources.

A comment by an Associate Justice on the Supreme Court 100-years ago holds true today, “Water rights are destined to play an important part in the future of Hawaiʻi as they have in its past.”

“The growth of urban communities and the agricultural development of the territory render inevitable the conservation and use in an increasing degree of the available waters, with probably consolidation of some rights and new distributions of others. The subject will lose none of its interest with the passage of time.” (Perry)

We are reminded of the importance of respect and responsibility we each share for the environment and our natural and cultural resources – including our responsibility to protect and properly use and manage our water resources.

I was honored to have served for 4½-years as the Chair of the State’s Commission on Water Resource Management overseeing, managing and regulating the State’s water resources.

We are fortunate people living in a very special place. Let’s continue to work together to make Hawaiʻi a great place to live.

The image shows Loʻi kalo near Līhuʻe, Kauaʻi (Mitchell, Bishop Museum, ca. 1886.) In addition, I have added other related images in a folder of like name in the Photos section on my Facebook and Google+ pages.

January 11, 2014 by Peter T Young Leave a Comment

Nā Wai ʻEhā

Maui is the second largest of the Hawaiian Islands, and covers about 730 square miles. Maui consists of two separate volcanoes with a combining isthmus between the two.

The Mauna Kahālāwai (West Maui Mountain) is probably the older of the two; Haleakala (East Maui) was last active about 1790, whereas activity on West Maui is wholly pre-historic.

Nā Wai ʻEhā (“The Four Great Waters”) – Waiheʻe River, Waiehu Stream, Wailuku (ʻĪao) Stream and Waikapū Stream are in central Maui.

The headwaters of Waine’e and ‘Īao extend to or near the summit of the Mauna Kahālāwai at Pu‘u Kukui and are among the largest streams, in terms of stream flow, on Maui.

The headwaters of N & S Waiehu Streams are cut off from the summit area by the valleys of Waine’e River to the north and ‘Īao Stream to the south, they later merge to form Waiehu Stream. Waikapū Stream is the only Nā Wai ‘Ehā stream that drains to the southern coast of Maui.

The abundance of water in Nā Wai ʻEhā enabled extensive loʻi kalo (wetland kalo) complexes, including varieties favored for poi-making such as “throat-moistening lehua poi.” (CWRM)

Nā Wai ʻEhā once “comprised the largest continuous area of wetland taro cultivation in the islands.” Its “complex agricultural system of wetland kalo cultivation,” together with the abundant protein sources in the streams and nearshore waters, supported one of the largest populations on Maui.

The fertile kalo lands, complex system of irrigation ʻauwai (ditches) and abundant fresh water from Nā Wai ʻEhā sustained Hawaiian culture for 1,000-years.

In addition to extensive agricultural production, other practices thrived in Nā Wai ʻEhā, including the gathering of upland resources, such as thatch and ti, and protein sources from the streams, including ʻoʻopu (goby fish,) ʻōpae (shrimp) and hihiwai (snail.)

The waters of Nā Wai ʻEhā were renowned for the practice of hiding the piko, or the umbilical cord of newborn babies. “(T)he spring ʻEleile contained an underwater cave where the people of the area would hide the piko of their babies after birth.” This practice affirms the individual’s connection to the land.

The practice of hiʻuwai, also known as kapu kai, often occurred here around the time of makahiki, when individuals “would go into the rivers or into the ocean in order to do a cleansing for the new year”.

This type of cleansing, which required immersion in the water, was also conducted “before you start or end certain ceremonies”. For ceremonies dedicated to Kāne, “having a hiʻuwai in a stream magnifies the mana”.

Given the makeup of the Nā Wai ʻEhā, Waiheʻe River and ‘Īao historically would have flowed continuously to the coast; Waiehu Stream would have flowed continuously to the coast at least 95 percent of the time; and Waikapū Stream would have flowed continuously to the coast less than half of the time. (USGS)

But the streams were diverted, to quench the thirst of the thirsty sugar plantations.

By 1866, a letter published in the Hawaiian language newspaper Nūpepa Kūʻokoʻa lamented “the current condition of once cultivated taro patches being dried up by the foreigners, where they are now planting sugar cane”.

These diversions and ditch systems historically supplied two sugar plantations: Wailuku Sugar and Hawaiian Commercial & Sugar Company (HC&S,) which belonged to the plantation-era “Big Five” companies C. Brewer and Alexander & Baldwin, respectively.

Wailuku Sugar was organized in 1862 by James Robinson, Thomas Cummins, J Fuller and agent C Brewer. In 1878, through his friendship with King Kalākaua, Claus Spreckels secured a lease of 40,000-acres of land on Maui and by 1882 he founded the Hawaiian Commercial Company (later known as Hawaiian Commercial & Sugar Company – HC&S.)

This quickly became the largest and best-equipped sugar plantation in the islands (in 1898, Spreckels lost control of HC&S and Alexander & Baldwin took over as agents at that time.)

Water wars have been waged way back.

Back in 1882, Wailuku Sugar and Spreckels fought over portions of the ditch system and purported rights to the water in the streams.

Lately, complaints were filed by downstream users arguing public trust, traditional and cultural practices (including kalo farming.) In part, the diversions and ditches are capable of diverting all of the dry-weather flow available at the intakes – and often times, downstream conditions resulted in dry streambeds.

More recently (March 13, 2008,) the State Commission on Water Resource Management designated Nā Wai ʻEhā a surface water management.

In addition, on August 15, 2012, the Hawaiʻi Supreme Court vacated a Water Commission decision and that included instream flow standards.

Instream Flow Standard is “a quantity or flow of water or depth of water which is required to be present at a specific location in a stream system at certain specified times of the year to protect fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses.”

The technical language of the law is complicated; I simplify this to say that the instream flow standard allows a stream to be a stream. (Lots of information here is from associated court papers and descriptions.)

The image shows a map of Nā Wai ʻEhā (CWRM.) I added a couple of other images in a folder of like name in the Photos section on my Facebook and Google+ pages.

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