Legal Battles Over Well 17 and Kawela Stream Continue
By Jack Kiyonaga, Community Reporter
Two long disputed water resources, Well 17 and Kawela Stream, are gradually making headway towards resolution. A panel of lawyers from Native Hawaiian and environmental legal firms, hosted by Councilmember Keani Rawlins-Fernandez and other Molokai residents, shared updates and legal avenues for resolution with a huge group of community members two weeks ago at Mitchell Pauole Center.
Molokai Ranch has been withdrawing water from Well 17 for decades without a permit, while diverting water from Kawela Stream for nearly a century in what has shown to be in significant excess of the Ranch is actually using.
Kauila Kopper, a lawyer for the Native Hawaiian Legal Corporation, explained that the main concern surrounding litigation with Well 17 is the “length of time that this issue has been around.”
Pumped from the Kualapu’u Aquifer, Well 17 supplies water to much of western Molokai including Maunaloa, Kaluakoi and other Molokai Ranch lands. The current legal debate surrounds Molokai Ranch’s permits to draw water from this well.
According to Kopper, the dispute began in earnest in 1992 when the “Commission on Water Resource and Management designated Molokai as a Water Management Area.”
As such, Molokai Ranch in 1993 submitted an existing use application for two million gallons of water per day from Well 17.
These permits were subsequently contested by the Molokai community for years, resulting in a 2001 court ruling which validated the Ranch’s permits. This ruling was followed by years of appeals leading to a 2007 court ruling which reversed the decision and invalidated Molokai Ranch’s water-use permits.
Having shut down major operations in 2008, the Ranch eventually abandoned its original permits – instead re-applying in 2014 for a water-use permit of one million gallons per day.
Yet again, litigation followed. The case culminated in a 2018 Hawaii Supreme Court decision which again rejected Molokai Ranch’s water-use permits.
Currently, according to Kopper, Molokai Ranch has yet to obtain proper permits for water usage out of Well 17, with the Water Commission still not having accepted the Ranch’s water permit application. Once the current application is accepted, the community can comment on the proposed water permits.
Thus, the contemporary issue portends to the Ranch’s continued pumping from Well 17 without permits or any ongoing proceedings, according to Kopper.
So, what is the community’s desired outcome for Well 17?
Kopper explained that the amount of water pumped from Well 17 needs to be justified by domestic usage and backed up by science.
“You need to prove that [the water] can come out” of the ground, said Kopper, in order to prevent excess pumping and environmental degradation.
Likewise, Kawela Stream has faced questions of litigation and water usage over the past decades.
Mahesh Cleveland, a senior associate attorney for EarthJustice, explained that Kawela Stream has long been diverted to supply West Molokai with water. Now that Molokai Ranch operations have largely ceased, the Ranch has continued to divert what Cleveland called a “grossly out of proportion” amount of water.
According to Cleveland, a report from the Water Commission explains that nine times the amount of needed water has been diverted from the stream.
Continued natural flow of the stream is essential because it supplies aquifers and supports the near-shore ecosystem, explained Cleveland.
While a March 2022 legal decision was supposed to restore flow to Kawela Stream, at least temporarily, Cleveland claimed that the Ranch “turned a couple valves but they didn’t restore the stream.”
It is this lack of demonstrative action which led to an October 2022 hearing before the Water Commission which reaffirmed the decision to restore the stream currently, explained Cleveland.
This most recent decision has led to what Cleveland called “one very recent update.”
Following the October ruling, the Ranch decided to cap a piece of pipe. This should back up water to the dam and result in continuous stream flow, explained Cleveland.
Both Kopper and Cleveland encouraged residents to continue attending community meetings and sharing their mana’o on both Well 17 and Kawela Stream.
“The most powerful thing is your voice to the decision makers,” said Cleveland.