The State of Water Usage on Moloka`i

Water Battle Begins

By Glenn Teves

Much more is being planned on West Molokai than just 200 millionaire estates and 200 caretakers’ quarters. About 10,000 acres is set aside for agriculture, which sounds great, but developers like Molokai Ranch view agriculture in a completely different way from a farmer. While a farmer views agricultural as a resource to grow food, a renewable resource that if cared for responsibly will continue to bear fruit, a developer views land as a commodity to buy and sell at a profit.

This is where much of the clashes are occurring between development and those who intend to live here for generations to come. Driving land prices up is not sustainable and leads to inequity, where those who have lived here for generations can no longer afford to live here. But whether land is used for farming or for human habitation, water must be supplied to the area.

The big question is: where will the water for these developments come from?

Water is one of the key issues in the controversial Molokai Ranch Enterprise Community (EC) plan, but not only for La`au Point. In the La`au Point Environmental Impact Statement, Molokai Ranch addresses water by stating that they are in discussions over water usage with Hawaiian Homes and the County of Maui, but the fact is Hawaiian Homes cannot negotiate any of their water rights. This was attempted in the mid-1980’s when then-chairperson Ilima Pi’ianaia tried to turn the Hawaiian Homes domestic water system over to the County of Maui. The Attorney General stated that Hawaiian Homes has no authority to give away their rights.

If anything, both DHHL and OHA have a fiduciary responsibility to protect the water rights of native Hawaiian rights under the Hawaiian Homes Act. That’s why it is strange that a Hawaiian Homes Commissioner and an OHA trustee support a plan that will steal water from the future Hawaiian homesteads.

The County of Maui, in essence, has no water rights to give away. In fact, they are dealing with an increasing salt content in their wells that is forcing them to seek permission to construct one or possibly two wells to supply Kaunakakai town since the Kawela Well has gone salty. The Water Commission has asked the county to seek water outside of Kualapu`u well field since most of this water is reserved for future Hawaiian Homes use, and the amount presently withdrawn is about 50% of the sustainable yield of this well field.

To gain support for their development, one of the deals proposed by Molokai Ranch is to give Hawaiian Homes 500,000 gallons per day from Well 17 at Kualapu`u. The fact is Molokai Ranch doesn’t own this water; Hawaiian Homes does. Molokai Ranch, therefore, also has no right to give this water away. Two-thirds of the groundwater west of Waikolu belongs to Hawaiian Homes and is mandated in the Hawaiian Homes Act of 1920. Of the water taken from Kualapu`u well field today, Molokai Ranch takes 39% of the water, Hawaiian Homes takes about 29%, and the County of Maui takes 31%.

Water disputes between Molokai Ranch and Hawaiian Homes have accelerated since Brierley International purchased the ranch in 1987. Beginning at this time, Molokai Ranch’s planning efforts were heavily focused on securing more water for their proposed developments. In these early years, they envisioned over 40,000 people with housing and resorts covering all their lands, including the Pala`au area. They have since ratcheted it down a notch, but made it more difficult to envision the whole project at once. There is even talk to extend the Kaluakoi Resort up toward Kawakiu. By making many small moves, the Ranch hopes to sail under the radar. In development jargon, this is called parceling; small land use changes are made without showing all their cards at one time. This practice is frowned upon by land use planners.

With the passage of the State Water Code in 1990, a hierarchy of water rights was set with Hawaiian homesteaders at the top of the list. The State Commission on Water Resource Management (CWRM), under the Department of Land and Natural Resources, is responsible for enforcing the water code.

Strong political jockeying and the hiring of the best water law attorneys allowed Molokai Ranch to secure approvals for a new well permit in the Waiola Case, only to have these decisions overturned by a coalition of residents, community groups, and Hawaiian organizations.

If not for these appeals, Molokai Ranch would have secured enough water to push this development forward 10 years ago, and we would have lost the rights in perpetuity to over 2 million gallons per day (mgd) of water to Molokai Ranch. As a result of these efforts, the Waiola decision to move 1.5 mgd from behind Kaunakakai to West Molokai was overturned in favor of the homesteaders, while the Kukui decision which allows Molokai Ranch to transport 1.018 mgd to Kaluakoi from Well 17 in Kualapu`u is on appeal before the State Supreme Court.

There were many meetings related to water after the passage of the State Water Code in 1990, and an important move by then-chair of the Department of Land and Natural Resources Michael Wilson was formation of the Molokai Water Working Group in 1993 to guide the development of a water plan for Molokai. This group was again activated in 1996. One of the main reasons for convening this group was that most of Molokai’s drinking water originated from Kualapu’u and there were fears that this source would be over-pumped. Around the same time, the Kualapu’u Well field was designated a Special Water Management Area by CWRM to control the use of water in this area. Due to concerns by residents that the whole aquifer be protected, and not just Kualapu’u, the Federal Environmental Protection Agency got involved and designated the Island of Molokai a sole source aquifer. In other words, no matter where you pumped a well on the island, you were withdrawing it from the same source.

CWRM meetings on Molokai drew the biggest attendance of all water meetings in the state, with over 400 passionate residents present at the first State Water Codes meeting held at the Kaunakakai School soon after its enactment. It got to the point where commissioners were fearful of coming to Molokai due to the emotion of the residents. Two members where sharing with me that they could feel the ‘mana’ of the people and would carry ti leaves in their pocket for protection. One night in particular when a commission was held at Mitchell Pauole Center, the meeting opened with a Lua dance that struck fear in the commission members and staff to the point where the secretary of the water commission wanted ‘to go home immediately’.

Some of the high points in Molokai Ranch’s attempts to secure water over the last 15 years include the following:

ە Kukui Molokai (acquired by Molokai Ranch) requests 1.018 mgd from CWRM for their west end developments, including over 400 house lots and the Kaluakoi Hotel. Hawaiian Homes opposes this request in order to protect their first rights to water. CWRM holds contested case hearings in 1999 and rules in Kukui’s favor. DHHL and homesteaders appeal this decision. Decision pending before the State Supreme Court.

ە Waiola Well. Mid 1990’s: Molokai Ranch files an application to drill a well in Kaunakakai and divert 1.25 mgd to the west end. CWRM approves petition, but is opposed by homesteaders, DHHL, OHA, Earthjustice (Sierra Club), and Native Hawaiian Legal Corporation. Contested case hearings are held, and decision is ruled in favor of Molokai Ranch. Homesteaders and their attorneys appeal the decision to the State Supreme Court. In 2003, the State Supreme Court overturns the decision in favor of the Hawaiians, OHA, and DHHL. Concerns included impact on Hawaiian Homes first rights to water, and that the Ranch failed to prove their well wouldn’t infringe on these rights. This is the same area where Molokai Ranch is attempting to take water for its La`au Point development, and transport it over 40 miles away to La`au.

ە In 1999, Hawaiian Homes requests an additional 500,000 gallons per day (gpd) from their reservation of 2.905 mgd for 85 new house lots in Ho’olehua, and 125 in Kalamaula. Molokai Ranch opposes this request, and a contested case was to begin. Due to strong opposition, even from their own employees, Molokai Ranch withdraws their opposition, but the damage was already done. Since that time, CWRM has yet to take action on this request. Instead of waiting for CWRM’s decision, Hawaiian Homes decides to take the water. No decision has been handed down by CWRM to this day.

ە In 2003, Molokai Ranch approaches Hawaiian Homes and requests permission to construct an additional pipeline across Hawaiian Home Lands at Mahana. Around the same time, the ranch submits a request for 250 lots at La`au Point. This process flies under the community radar and scrutiny. A county planner notifies a community member and exposes this project just before the Ranch was to gain approval for it. When asked about water for the project, Harold Edwards tells Maui County that DHHL has already given them permission to run a new pipeline through their lands, which is a lie. DHHL is informed of his statements at a commission meeting in Waimea, Hawaii, and votes unanimously to oppose the request by Molokai Ranch with some reservations by the Molokai commissioner. Molokai Ranch files a complaint with DHHL that their right to due process was violated. DHHL sits on the complaint.

ە In 2003, a community input meeting is held on Molokai at the request of Molokai Hawaiian Homes Commissioner Milton Pa to collect public testimony on this decision by DHHL to oppose a new pipeline by Molokai Ranch. Strong opposition is voiced by over 60 homesteaders to transport water over Hawaiian Home Lands. This is Molokai Ranch CEO Peter Nicholas’ first exposure to overwhelming opposition to their plan.

ە Community meetings for the EC/Molokai Ranch Land Use receive a very cold reception in Ho`olehua in January 2006 when over 200 homesteaders attend, and with 95% of those testifying in opposition to the plan. A meeting held in Kualapu`u a couple months earlier runs into similar opposition with 75% testifying in opposition to the plan.

ە Last year, Governor Lingle attempts to dissolve the Commission on Water Resource Management by forcing the director to testify at the legislature in support of dissolving the commission. Instead of complying, Director Yvonne Izu resigns to bring attention to this injustice. Molokai Ranch hires her as their attorney for the La`au Point zoning change along with former CWRM director Lynnel Nishioka..

ە Molokai Ranch files papers for a land zoning change at La`au Point from agriculture to rural in preparation for their proposed La`au Development. The Molokai Homestead Farmers Alliance file papers to intervene on the Land Use Commission zoning change in Fall 2006.

ە Hawaiian Homes holds regional planning meetings on Molokai at the request of the Governor. High on the list of priorities include agriculture development, protection of water for agriculture, formation of a local water authority to control the use of Hawaiian Homes water. Implementation to begin in early 2007.

Today, the water issue is more critical than ever. With over ten years of drought, the true sustainable yield of this island is in dire question.

Delwyn Oki, a US Geological Survey water expert stated at a meeting in Kaunakakai in August 2006 that he doesn’t believe Hawaiian Homes will be able to withdraw their reservation of 2.905 million gallons per day from Kualapu`u because he doesn’t think that much water exists there. This will force Hawaiian Homes to look east to the Kamiloloa sector for additional water.

With the County water for Kaunakakai in a crisis situation, the County will need to drill one or possibly two wells to supply the present needs of Kaunakakai, and it makes perfect sense that the present needs of Kaunakakai are much more important than any future use on the West End. It’s likely that these new wells will be drilled near Kaunakakai in the Kamiloloa sector or in the Kawela sector. This leaves Molokai Ranch to look east of Kawela for water if the hierarchy of the State Water Code of 1990 holds true.

Glenn Teves is a Maui County Extension Agent, and works for UH College of Tropical Agriculture and Human Resources