Hawaii First Water

How Water In Hawaii Became A Matter Of Public Trust

(September) By Chad Blair in Civil Beat.  Article XI, Section I of the Hawaii Constitution states that, for the benefit of all generations, the state and its political subdivisions shall conserve and protect all of its natural resources, including water.

Water along with land, air, minerals and energy sources are held in public trust, a major outcome of the 1978 Constitutional Convention.

And yet, in spite of this bedrock principle, battles over water rights continue through the present day, most recently and prominently seen in East Maui, where taro farmers and environmental groups have tangled with large developers and land owners for decades over diversion of stream water.

A new book, “Water and Power in West Maui,” written by Jonathan Scheuer, long active in helping groups manage environmental conflict and preserve resources, and Bianca Isaki, an attorney and director for the North Beach-West Maui Benefit Fund, reminds us that struggles over controlling access to fresh water are hardly limited to East Maui.

It’s a statewide issue, and it is fundamentally about “perpetuation of political and economic power and privilege,” as a blurb for the book accurately states.

See the rest of the article in Civil Beat here…

 

UH research essential in federal Clean Water Act ruling

June, Cindy Knapman/UH: The U.S. Supreme Court ruled in April that the federal Clean Water Act, which regulates the discharge of pollutants into the nation’s surface waters, including lakes, rivers, streams, wetlands and coastal areas, must also consider pollutant inputs to those waters by groundwater. This ruling was based on scientific findings from researchers at the University of Hawaiʻi at Mānoa School of Ocean and Earth Science and Technology (SOEST).

Over the last decade, Maui coral reefs have experienced a decline in health and overgrowth by invasive algae. Concerns arose that submarine groundwater discharge was carrying nutrients from wastewater infrastructure to nearby coral reefs, contributing to this decline. However, the quantity and locations of submarine groundwater discharge along Maui’s coasts were poorly known. It was also unclear whether the groundwater carried high concentrations of nutrient or other pollution.

SOEST researchers from the Department of Earth Sciences were awarded grants from the U.S. Environmental Protection Agency and U.S. Army Engineer Research and Development Center to investigate the hydrological connections between deep injected effluent from a municipal wastewater treatment plant on Maui and nearby coastal waters.

The researchers applied novel techniques including using aircraft to collect thermal infrared imagery to map oceanic inputs and the extent of effluent discharge, deployed scuba seafloor mapping, analyzed groundwater and algae samples to look for isotopic signatures unique to wastewater, used radioisotopes to help establish flow rates, and deployed tracer dyes to track rates and paths of the injected wastewater effluent to Maui’s coastal waters. The tracer dye test provided unequivocal evidence that the injected wastewater travels through groundwater to the coastal ocean.

Lahaina, Maui map
Lahaina map showing groundwater seeps, heat signature of effluent plume. Credit: Glenn, et al., 2013

“This was a very impactful scientific study with regard to protecting the environment, and with far-reaching socio-economic and sustainability implications for the State of Hawaiʻi and the nation as a whole. Our high-caliber UH team was glad that we could make it happen,” said Craig Glenn, lead author of the study and professor of Earth Sciences at SOEST.

The research team conclusively demonstrated that millions of gallons per day of deeply injected treated sewage effluent from the West Maui wastewater reclamation facility are being added to Maui’s adjacent ocean waters.

for the rest of the article see here

Mayor: Maui Will Not Withdraw Supreme Court Appeal in Lahaina Injection Well Case

(Editor Comment:  Environmentalists would like to settle this case out of court fearing that a more conservative Supreme Court will weaken the Federal Clean Water Act.)

October 2019: Maui Now: Wendy Osher: Maui Mayor Michael Victorino says the County of Maui will not withdraw its appeal of the Lahaina injection well case from consideration by the US Supreme Court.

He is now seeking clarification from the high court saying, “I want Maui County taxpayers and ratepayers to have their day before the US Supreme Court and get clarity on this important question on the application of the Clean Water Act.”

In a statement issued on Friday, Mayor Victorino said:

“To allow this to go unanswered leaves us vulnerable to more lawsuits, to uncertain regulatory requirements and staggering costs – all for what would be a negligible environmental benefit. The legal exposure is immense, not only for the County but for private property owners as well. It goes far beyond injection wells. The Ninth Circuit’s decision means that many County facilities – including Parks, Public Works, Environmental Management are likely in violation of the federal law as it’s interpreted by this court. Penalties can be imposed of nearly $55,000 per day per source. The effect on private property values, and the associated property taxes which fund the majority of County operations, cannot be ignored.”

Attached is Mayor Victorino’s letter to Maui County residents and a Corporation Counsel opinion on settlement authority. Letters, memorandums and other documents connected with the case can be found online.

Four community groups, represented by Earthjustice (Sierra Club and the Surfrider Foundation, with support from Hawai‘i Wildlife Fund and West Maui Preservation Association) filed a complaint with in Hawai‘i Federal District Court in 2012, alleging that Maui County was in violation of the Clean Water Act for its injection well discharges of municipal wastewater into the Pacific Ocean just offshore of Kahekili Beach Park in West Maui.

The groups claim that pollutants from the Lahaina Wastewater Reclamation Facility are flowing to the ocean and harming coral reefs.  Environmental groups who brought the lawsuit say they’re asking the County to fix nearshore deadzones and give Maui’s reefs a chance to recover.

The rest of the Maui Now article is here….

State of Hawaii Freshwater Dashboard

October 2019  (Editor Comment:  According the State of Hawaii Dashboard, as of April 2019, the state estimated that we saved about 11 million gallons of water per day (gwd) of our target of 100 million gwd which we are aiming to hit by 2030.

  • We have used about 4 years of our 14 year timeline which is about 29% of our time period.
  • Ideally we would be hitting about 30 million gwd rather than 11 million gwd, which suggests we are slowly falling behind our target.

Is there any hope that we will actually achieve our 2030 water goal?  Regretfully climate change is making this an uphill battle.  But there is room for optimism.

  • The population increase is slowing on the islands and more and more low water appliances are being used by Hawaii households.
  • The increasing funds for watershed conservation and the implementation of stormwater utilities will also have a positive impact on replenishing our groundwater reserves.

The reuse of wastewater by businesses remains the speed bump in the road, smart regulations and increased incentives toward sustainability practices will help.

Here is the link to the Water Dashboard

Increase Fresh Water Capacity by 100 Million Gallons per Day

HOW WE’RE TRACKING PROGRESS: The baseline is 0 starting January 1, 2016. This goal is measured by tracking increased additional, reliable fresh water capacity from water conservation, recharge, and reuse.Explore the data
11Million Gallons per Day of Water Recharge, Conservation, and Reuse
Current as of Apr 2019

Opinion: House Bill 1326 Regarding Maui Stream Diversion

By Gary Hooser | April 21, 2019/ Star Advertiser Opinion:

In my 20 years of experience in government, politics and policy-making, House Bill 1326 is the most egregious example of special-interest legislation I have ever seen.

Fortunately the state Senate has taken time to listen to public concerns. After weighing both sides, conducting a thorough public hearing, asking tough questions and even visiting the Maui community most impacted, the Senate led by Water and Land Committee Chairman Kai Kahele has decided to shelve HB 1326.

Key Senate members have stated publicly they have no intention of passing HB 1326, but technically, it remains alive. Until the session ends May 2, anything can happen.

Alexander & Baldwin (A&B) stands to gain or lose $62 million, depending on the outcome of HB 1326. In essence, it is attempting to sell public trust water rights derived from stream diversions in east Maui. The intended beneficiary of this transaction is Mahi Pono — a California-based LLC, financed by a Canadian pension fund — which recently purchased the majority of A&B lands on Maui.

One fairly significant problem with this proposal is that A&B neither owns, nor has long-term control over this water.

In Hawaii, whether beneath the ground or flowing through our rivers and streams, water is a public trust resource. Businesses may use the resource, but must secure a permit that ensures sufficient water remains in the stream to preserve its natural ecosystem and that down-stream users also have access.

Yet this one company, the last remnant of the “Big 5” plantation era, and arguably the most politically powerful private landowner in Hawaii, is attempting, with the Legislature’s help, to secure those water rights without securing the proper long-term permits, and then transfer those water rights to Mahi Pono — pocketing a cool $62 million in the process.

The original HB 1326 proposed giving A&B and a handful of others an unlimited amount of time to divert an unlimited amount of water, without securing the permits and without ensuring environmental or down-stream user protections.

The present measure, HB 1326 House Draft 2, allows them 10 years, three of which have already passed, to comply with permitting requirements and convert their “temporary” one-year revocable permits (RPs) to proper long-term water leases.

Though A&B is the primary proponent and largest beneficiary of the measure, nine other RPs also are impacted by HB 1326 HD2, including some utilized by small ranchers and farmers.

The current controversy surrounding the plight of the small farmer and rancher is a manufactured crisis, perpetuated by the primary beneficiaries of HB 1326 HD2 and designed to promote fear and uncertainty.

The state Department of Land and Natural Resources (DLNR) has issued RPs to small users in the past without a problem. There is no specific legal impediment that prevents DLNR from extending the temporary RPs of these particular small farmers and ranchers while they pursue long-term leases.

The DLNR could provide certainty today, to all concerned by simply announcing its intent to continue extending the RPs of small users, so long as they demonstrate good faith and positive intent in pursuing a proper long-term water lease.

To his credit, Kahele, while acknowledging that DLNR could act unilaterally to resolve the situation, offered up a compromise that protected the little guy, while holding A&B accountable. Unfortunately, this overture was rejected.

The underlying problem is DLNR’s inability to manage the permit process. However, it’s neither the Legislature’s job nor in the public’s best interest to attempt to fix bad management with bad special-interest legislation.

And it’s certainly not the Legislature’s job to bail out a company that sold water rights it does not own.

It’s time the Legislature demand that the DLNR do its job. We, the collective community and the Legislature, need to move past the distraction and passions generated by HB 1326, and focus instead on the myriad other important bills begging for our time and attention.

Gary Hooser, a former state senator and Kauai Council member, is board president of Hawaii Alliance for Progressive Action (HAPA) and executive director of Pono Hawaii Initiative.

Hawaii Water Rights Bibliography

(Updated Feb 2019) This bibliography was compiled by Shavonn Matsuda for LIS 687, Spring 2012, at the University of Hawaiʻi at Mānoa.

This bibliography has been developed to support research on surface water rights in Hawai‘i, focusing particularly on works that detail the history and development of Hawaiian water rights.  The intended audience are landowners, in Hawai‘i, seeking to understand their own water rights. Nevertheless, this bibliography is also targeted at post-high students and researchers interested in water rights and law and assumes a basic understanding of land and water rights in Hawai‘i.

Here is the link to the bibliography

Supreme Court to decide if Clean Water Act limits Hawaii’s underground wastewater dumping

By David Savage, Feb 2019, LA TIMES:

The Supreme Court agreed Tuesday to decide whether the Clean Water Act can prevent sewage plants from putting waste water into the ground if it flows from there into a river, bay or the ocean.

The case from Hawaii is an important test of the reach of the federal government’s anti-pollution authority.

Environmentalists sued alleging a sewage plant in Maui was discharging treated waste water into the ground and it was flowing underground from there into the Pacific Ocean.

They won before a federal judge and the 9th Circuit Court of Appeals in San Francisco, which held that the pollution was subject to federal control because it was the “functional equivalent of a discharge into the navigable water.”

But the Supreme Court agreed to hear an appeal from Hawaii that was backed by the Assn. of California Water Agencies. Their lawyers called the 9th Circuit’s ruling a “radical expansion” of federal authority. If upheld, its approach would extend new federal regulation to water treatment plants across the country, they said.

The Clean Water Act calls for preventing discharge of pollutants into the “navigable waters of the United States.” Water agencies say the law refers only to polluted water flowing directly into streams, rivers and bays, not groundwater.

For more than a decade, the justices have been split over how far the federal government can go to regulate water inside the United States, whether it be wetlands, or, as in this case, groundwater. The court’s conservatives have argued the federal government can only regulate polluted water that flows directly into a river, bay or the ocean. The law forbids discharges of pollutants into “the waters of the United States.”

But environmentalists as well as the court’s liberal justices have said this authority can extend farther inland to prevent pollution that will eventually flow into rivers and bays.

The case, County of Maui vs. Hawaii Wildlife Fund, is scheduled to be heard in the fall.

For the full article in the LA Times see:

Earthjustice cases restoring water to native streams…

Feb 2018: Earthjustice.

Water in Hawaiʻi is a public trust resource, protected under the state Constitution and Water Code. Plantations diverted many Hawaiian streams to water sugar cane and pineapple fields, drying out and destroying the native life and Hawaiian communities connected with those streams. Now that plantations are in decline, the water can be restored to the native streams.

A continued series of cases, brought by Earthjustice on behalf of our clients, has reaffirmed the legal principle of water as a public trust and methodically succeeded in restoring flows to traditional uses.

Read about the cases here…

US Government Releases First Global Water Strategy

December: By Brent Walton, Circle of Blue:

To coordinate its response to floods, droughts and disease and other water challenges whose political and economic challenges leap borders the Trump Administration submitted the Federal government’s first global water strategy.

Ordered by Congress, the strategy lays out four goals; to increases access to safe drinking water and sanitation, improve water management, protect watersheds from pollution, and prevent conflicts over river, lakes, aquifers that cross political boundaries.

“Safe water and sanitization are fundamental to solving challenges to human health, economic development and peace and security,” the 70 page report states.

Here is the link to the report…

U.S. Household Water Use Continues to Decline…

(December/Kobayashi Comment:  This trend is also seen in Hawaii although Hawaii’s population growth will likely erode this decline in the future.)

By Brett Walton, Circle of Blue:

Continuing a trend that began in the early 1990s with tighter federal plumbing standards, U.S. household water use dropped again in 2015.

When assessing national figures, there are two main ways to gauge water use at home: the amount used per person and total water use, which incorporates changes in population. By both measures, water use is declining, according to the latest report from the U.S. Geological Survey, the agency that gathers national data every five years.

For people served by public and private utilities, water use for cooking, drinking, showering, lawn watering, car washing, and other household tasks dropped to an average of 83 gallons per person per day in 2015, down seven percent compared to 2010. Household use was 105 gallons per person per day in 1990.

Link for the rest of the article