Hawaii’s Constitution enshrines the people’s common ownership of all the water that flows off the mountains in a public trust doctrine. Potential users that would profit from its use must ask for its use; how much and for what purpose, by applying for a lease.
Kauai Island Utility Cooperative has been taking water since 2004, with no lease, from the Waikoko and Waialeale streams at the Blue Hole diversion, located on public conservation district forest land. The permitting agency, the state Department of Land and Natural Resources, has instead allowed KIUC to avoid its lease obligation and has granted yearly revocable permits.
Starting in 2006, DLNR has pressured KIUC to secure a lease by 2020. Their current, one-year permit expires at the end of this year, and the law allowing continuance of one-year permits, HRS 171-58(c), expires in July 2019. KIUC’s diversion of Blue Hole water will be the subject of a state Board of Land and Natural Resources meeting in Honolulu on Dec. 14.
KIUC has made little if any progress in securing a lease. It would require an environmental impact statement that would reveal, among other things, that they are diverting far more water from the streams than they need to operate the two, 100-year-old hydroelectric plants that generate 1 percent of KIUC’s electricity output. That runs afoul of the public trust doctrine’s “only take what you need” principle.
Also, the water is being “consumed.” That means it doesn’t go back to the stream of origin after its use in the hydro plants. To accomplish that, KIUC would have to pump the water five miles back up the mountain. This rule is intended to maintain rivers in their natural states.
Four other streams are also diverted and available to the hydro plants. One of them, the Iliiliula, produces 9.95 million gallons daily (mgd). These four streams, hydrology experts believe, are enough to run the two hydro plants. KIUC wants two-thirds of the Blue Hole water when in fact eliminating the Blue Hole diversion entirely would likely not diminish electricity production.
The diversion gates were opened with stream flow fully restored, and the lower Waiahi plant was shut down for eight months in 2007 for the filming of “Tropic Thunder.”
The collective volume of water from these six streams that is diverted to the Iliiliula ditch system is estimated at 30 mgd. A century ago, that amount ran the hydros plus irrigated thousands of acres of sugar cane.
Why is KIUC so insistent to divert Blue Hole water that it can operate without? An agency that complements DLNR, the state Commission on Water Resource Management, is tasked with measuring stream flows so science-based allocations can be determined.
At the Aug. 21 CWRM meeting at Kauai Community College, KIUC’s Chief Executive Officer David Bissell was asked the obvious question, “How much water flow is required to operate the two hydro plants?” His answer was “I couldn’t say,” followed by “we’ll take all we can get.” Why would KIUC conceal this essential information from CWRM?
The recipient of all the water, before and after it leaves the hydro plants, is land developer Grove Farm.
KIUC has paid the state $37,200 yearly as its permit requires, but Grove Farm has no permit, pays nothing, and sells water to the Kauai Department of Water for $2 million a year.
Failure to enforce public trust law has mounting cultural and environmental impacts, too. At the Oct. 16 CWRM meeting on Oahu, KIUC Communications Director Beth Tokioka told the commission KIUC does cultural studies but “have not found any cultural practices that have been inhibited” by dewatering almost every stream flowing off of Mt. Waialeale. This will be news to every hula practitioner in Hawaii and worldwide, who early on is taught by their kumu a reverence for the waters of Kane, the Great, Sacred Wailua. Ceremonial use is common practice, and it is constitutionally protected.
The historical record suggests that, prior to massive water diversion by the sugar barons, and guided by the aha moku system, a thousand acres were planted in taro in the Wailua watershed. Water rights for taro growers are constitutionally protected.
The December BLNR meeting will focus on how much water, if any, should be diverted out of the streams at the Blue Hole. Hui Ho‘opula Na Wai o Puna is a hui that represents Kauai taro farmers, the fishing community, cultural practitioners and kuleana land owners. They and their attorneys from Earth Justice will be at that meeting calling for full restoration of free-flowing rivers and streams and the perpetuation of a living Native Hawaiian culture.
BLNR is accepting comments by email at firstname.lastname@example.org up to Dec. 13. In your email reference RP 7340.
Kip Goodwin is a resident of Wailua.