May 23, 2021

THE GARDEN ISLE - Water is life... But at what cost?

By Jim Edmonds, PAL Papers

The PAL Kaua‘i mission is to provide homes and sustainable living solutions, Within reach, restoring hope for the people of Kaua‘i.

Each month, we cover relevant topics on housing, sustainability, or current events that impact your life. We then take a deeper dive into these topics on our

PAL KKCR radio show from 4 to 6 p.m. the next day — tomorrow, the fourth Monday of the month.

This month we sat down with Bridget Hammerquist, who formed Kia’i Wai o Wai‘ale‘ale — a community group to “Protect the Waters of Wai‘ale‘ale.”

This is a wide-ranging interview — To see the rest of the story: water banking (aka hoarding), sugar cane days, drinking from ditches, etc.) go to: pal-kauai.org/copy-of-in-the-news or just go to pal-kauai.org and click the media page.

PAL: So how did you become so involved in water rights and environmental issues on Kaua‘i?

Hammerquist: It all started when a woman, whose father used to be a cattle rancher on the mainland, (so she knew a lot about cows), came running up my steps one day because I had a background in law. She said “You have to stop this Maha’ulepu Dairy! It’s not just a dairy, it’s an industrial dairy! They want to put 2000 pregnant cows in Maha’ulepu Valley.”

As a teenager I would visit that valley and have a great time and swim all day. But I didn’t even know why one would want to stop a dairy. So, I began to think “Wow, 2000 cows,” and I got to doing some reading and realized that this is really bad for the environment because of the volume of waste they produce. (an adult cow generates about 120 pounds of feces and urine a day — multiply that by 2000 cows — 365 days … that’s about 90,000,000 pounds a year !)

Bridget became very concerned about the threats to the valley, the stream and the ocean. So she worked with others and stopped the dairy.

While they were trying to figure out the impact of the dairy, Bridget asked the people proposing to build the dairy where they’re going to get the 3 million gallons of water a day they needed.

They said, “Grove Farm has guaranteed it to us.” So she and others asked “Okay, but where is Grove Farm getting it?” Well, according to Bridget, it turns out they learned there are two stream diversions on two State Land streams. One of them, our most revered mountain, Wai‘ale‘ale, and the next is Waikoko Stream. This started Bridget on another long journey with water and the rest of her interview is eye-opening!

PAL: Who really controls the water and how does it get to our tap? What are the permits or permissions?

Hammerquist: You said “Permission” in your question, but they [Grove Farm] don’t have permission. That’s what we are fighting now. We have a case I call “The water case”, and we gave the Interim Court of Appeals our final brief on May 13.

This case raises that exact issue. The Constitution of the State of Hawaii identifies water as one of our most precious “Public Trust Resources” and there are statutes that were created by the legislature to meet the requirements of the Constitution. Hawaii Revised Statute 171-58 1 and the Water Code 174C are kind of hallmarks of how we’re supposed to manage our water.

The reality is that all of our governmental centers, The Commission on Water Resource Management, Department of Land and Natural Resources, the Department of Health, are based on O‘ahu. So, over time, the outer islands have just done whatever they wanted to.

This kind of dates back to the time before statehood when the sugar industry was developed in the late 1800s and the early 1900s. We were a territory of the US, we had a territorial governor, and they pretty much took what they wanted. They built diversions on all of our major streams. Kaua’i has many diversions. They had to be registered in 1989, by proclamation of the legislature.

After that, the DLNR, at some point in time, sort of abandoned doing any policing of stream diversions. The only ones they concentrated on were those on State land streams. In the entire state, there are only 13 stream diversion permits issued by the DLNR, but there are a lot of other diversions that are taking water regularly. We were active in this effort to restore stream flow in Lawai Stream, and the Commission on Water Resource Management just issued a rather historic ruling.

They told Alexander and Baldwin (A&B), “You can’t take base flow anymore.” All the old sugar stream diversions were built to capture what’s called base flow, the steady flow that’s there every day whether it rains or not. A&B took so much flow from so many of the streams that they created dry stream beds on the ocean side of their diversion. That’s been the practice for 80 plus years and some of them up to 110 years. It’s done tremendous damage to the natural flora, fauna and the ecosystem.

In 2015, The State Commission on Water Resource Management (CWRM) finally got a state hydrologist, a Ph.D. hydrologist. He’s a real bright young man and he’s done an enormous job, but he’s had to cover so many streams on so many islands that are being terribly abused and the environment around them is being killed.

So, when we went to bat for the Lawa‘i Stream with the CWRM, we contacted the hydrologist. He made two years of records and finally it came to a hearing a little over a month ago.

They told A&B, “no more base flow, you have to redesign your diversions. They can’t be made of boards that will rot and fall away and then you’re taking more water than you should. They must be concrete, so you’re only taking medium or high flow. The base flow has to be allowed to remain, mauka to makai.”

That decision was specific to Lawa‘i, but it will be a precedent. The commissioners said that in the ruling, which was unanimous. The instream flow standard has to be set stream by stream so it’s going to take some time. There are a lot of streams now before the CWRM, on Maui, the Big Island and Kaua‘i.

PAL: Do the plantations who created the diversions sell water?

Hammerquist: Yes, they still sell water. Grove Farm sells water from Waialeale, Waikoko and about 8 others in the Wailua watershed. They are selling it to the County to sell to potable water users. About 15,000 households on this Island and some businesses are now using water that’s being taken from our streams.

PAL: What? They are taking a public resource and selling it back to the public?

Hammerquist: And they’re not paying the State for it. That’s the case we have before the interim court of appeal. They are doing it without permission, they don’t have a diversion permit from DLNR. And anybody can pull Hawaii Revised Statute 171.8 and read it. It says that you cannot take stream or ground water without permission from the state. That was the law that was passed to protect the public trust resource, water.

The problem is the state doesn’t have the political will to enforce it. They claim they don’t have the manpower. There’s 13 permits in the state. The permits were supposed to be temporary, and we’ve had several large efforts of the legislature to get DLNR to move these permits to leases but they say the law is too cumbersome and too difficult, they don’t know what to charge, etc.

Grove Farm is paying the state nothing, but it takes almost 30 million gallons a day. A&B is permitted and paying on Maui, but not here on Kaua’i, to my knowledge.

If the water takers don’t make payments, the Department can never have the manpower it needs to police this. It is kind of a chicken in the egg thing, you know?

Here’s the big thing. They did this for sugar, right? Well, under the law … once that use ended, even for those that had a permit, they were supposed to stop taking water! A&B stopped growing sugar in 1996.

So, why do they keep taking? Well, one thing is they developed Kukui’ula, a large, high end home development, right? They put in a 20 acre Lake with private fish stock! But at what cost? They took public trust resources to build it!

You can find out more about PAL Kaua‘i, and even help us do this noble work. Visit our website at PAL-Kaua‘i.org or call (808) 738-6706.

TOGETHER … WE CAN MAKE A DIFFERENCE!