Ka Wai Ola - Office of Hawaiian Affairs, Volume 35, Number 10, 1 October 2018 — Restoration of Wai'ale'ale water on Kaua'i heads to litigation [ARTICLE]

Restoration of Wai'ale'ale water on Kaua'i heads to litigation

Submitted by Earthjustice LIHUE, HI - On Aug. 21, the Hawai'i Commission on Water Resource Management ("Commission") considered a historic staff proposal to restore water to Wai'ale'ale and Waikoko Streams on the island of Kaua'i after nearly 150 years of complete diversion. The two streams flow directly from Mount Wai'ale'ale, a plaee of paramount sacredness in Hawaiian culture. Although the staff proposal suggested restoring less than one-third of median stream flows, the Commission was entertaining recommendations to increase the proposed restoration when Kaua'i Island Utility Cooperative ("KIUC"), whieh currently diverts the streams to run two small plantation-era hydro plants, requested a contested case hearing. The request initiated legal action and ended the Commission's deliberations over restoring stream flows. The dispute over appropriate instream flow levels will now be resolved in an adversarial trial-like proceeding before the agency. Kaua'i eommunity group Hui Ho'opulapula Nā Wai o Puna, represented by non-profit environmental law firm Earthjustice, submitted its own request for a contested case hearing after Commission deliberations halted. The Department of Hawaiian Homelands also requested to participate, "Yesterday's outcome was unfortunate, but consistent with KIUC's history of disrespecting public trust water resources," said Adam Asquith, a taro farmer and member of Hui Ho'opulapula Nā Wai o Puna. "The Commission was doing an excellent job of working towards a more just and balanced mahele (division) of stream waters. When it became apparent to KIUC that it might have to share more stream water with the community, it shut down the entire process." The interim instream llow levels ("IIFS") under consideration at yesterday's meeting are the primary legal mechanism by whieh the Commission fulfills its duty to protect stream resources by setting minimum amounts of water that must remain flowing in a stream at all times. An estimated 200 community members attended the Aug. 21 meeting on a workday, with a standing-room-only crowd filling Kaua'i Community College's Fine Arts Auditorium when the hearing opened. "The significance of restoring water to this area cannot be overstated or translated easily into a number," said Debbie Lee-Jackson, a Native Hawaiian cultural practitioner, and member of Hui Ho'opulapula Nā Wai o Puna. "It's something you feel in your na'au when you go to this plaee; these waters are sacred. I remain hopeful that the Commission will be responsive to community requests to restore llow and justice to these streams." KIUC argued at the meeting in favor of continued diversions for its hydro plants, whieh account for only around one percent of its energy uses. But it was hard-pressed to answer questions from Commissioners asking it to justify its actual water and hydropower needs. Publicly available information shows that the outdated Waihi plants are not integral to KIUC's generation needs, and are only becoming more obsolete with advancements in renewable energy resources. "The Commission's deliberations show that it takes seriously its fiduciary responsibility to protect the outstanding cultural significance and sacredness of these two streams," said Earthjustice attorney Leinā'ala Ley. "While we are disappointed that KIUC has chosen an adversarial path at this time, we remain both hopeful that KIUC will seek a more cooperative and culturally responsible solution, and committed to ensuring an outcome that honors the principle that Hawai'i's streams are a public trust resource and legacy for all." ■