Volume 30, Number 4 October 2019

A Bombshell Decision Plaintiffs Seek More Transparency In Plan o the surprise of no one who To Manage Army’s Pohakuloa Training Area Thas been paying attention, the Hawai‘i Supreme Court found nder a draft, court-ordered plan to training or maneuvers implicating national that the state has ignored its duty Umanage state lands within the Pohaku- security confidential. It is neither prudent to monitor the Army’s use of some loa Training Area (PTA) on the Big Island, nor reasonable, however, to prohibit plain- 23,000 acres of land that make up observers chosen by the Native Hawaiian tiffs from photographing debris or litter the largest part of the Pohakuloa Legal Corporation (NHLC) or its clients, observed by them during the inspection, Training Area, in the Saddle area of Clarence Ching and Mary Maxine Kahaule- or to prevent them from sharing with third the Big Island. lio, would be allowed to tag along on site parties observations that have no national What may be surprising is the fact that the court’s decision included inspections by the staff of the Department security implications. To do so would re- a determination that the state’s of Land and Natural Resources (DLNR). duce plaintiffs’ role as inspection observers public trust obligations extend to all They would not, however, be allowed to to mere tokenism.” ceded lands, not just to land in the photograph or record any part of those In 2014, the NHLC sued the Board of state Conservation District and to inspections and any documentation of the Land and Natural Resources and its chair freshwater resources, as conventional inspection that the observers might make (William Aila at the time; Suzanne Case wisdom held. would be confidential. today) after the DLNR failed to provide That finding now opens the door To NHLC attorney Summer Sylva, Ching and Kahaulelio with records dem- to new claims that mismanagement those conditions are unacceptable. onstrating that the military was complying of state land amounts to a breach In an April 16 letter to 1st Circuit Judge with conditions of its 65-year lease for the of the public trust. The motion for Gary Chang, who must approve the plan 22,900 acres of state lands, for which the reconsideration of the use of ceded land by the Kahala Resort may be before it goes into effect, Sylva wrote, “It military has paid a single dollar. the first of these, but certainly not is both prudent and reasonable to keep Continued on Page 4 the last.

IN THIS ISSUE Polovina to Discuss Climate Change 2 At Annual Dinner of Environment Hawai‘i New & Noteworthy: ‘Aina Le‘a Stumbles n November 8, Jeff Polovina will be and Atmospheric Administration. His eco- A Draft EIS For EMI; Othe featured speaker at our annual system modeling of the food chain, ECO- 3 benefit dinner. Polovina is the author of PATH, has become a standard analytical Council Struggles to Justify the Oceans and Marine Ecosystem section tool for anyone wanting to understand the Expenses for Meeting of the Hawai‘i chapter of the 4th National interrelatedness of marine organisms. 6 Climate Assessment. Until his retirement Polovina is also well known for his work Pohakuloa Ruling Spurs Motion two years ago, he studying regime shifts and climate impacts For Reconsideration in Kahala Case was senior scien- on marine ecosystems. His current research 7 tist and chief of uses climate and ecosystem models and data State, County Agencies Struggle the Ecosystem and to identify potential fishing and climate With Transition to Electric Fleets Oceanography Di- impacts on ecosystems, particularly those 9 vision of the Pacific in the central North Pacific. Hydrogen Buses May Finally Islands Fisheries Although most of his work focuses on Make Debut on the Big Island Science Center, a the central North Pacific and Pacific islands, research arm of the Polovina has received two Fulbright Senior

10 photo Courtesy Water Commission Roundup Jeff Polovina National Oceanic Continued on Page 9 Page 2 ■ Environment Hawai‘i ■ October 2019

Volume 30, No. 4 October 2019

NEW AND NOTEWORTHY

‘Aina Le‘a Stumbles: On August 26, and building lot preparation alone are license allowing East Maui Irrigation Co. Robert Wessels, who heads up ‘Aina projected to cost $246,867,500, Wessels (EMI) to continue to take water from Le‘a, Inc., forwarded to the Hawai‘i has claimed. East Maui streams has been released. County Planning Department an envi- Wessels anticipated publication of And, at 2,700 pages, it is as lengthy as it ronmental impact statement preparation the EISPN in the September 8, 2019 is long awaited. notice (EISPN), prepared by Christian Environmental Notice and accordingly The action proposed in the DEIS is a Renz, a Waikoloa landscaper. scheduled the required public meeting continuation of the status quo, subject, In the decade since Wessels first ap- for September 26 at the Waikoloa Beach however, to the state Commission on peared before the state Land Use Com- Marriott hotel. Water Resource Management’s order in mission as the developer of a project But on September 9, Planning Direc- 2018 to restore flows to ten of the previ- known as the Villages of ‘Aina Le‘a, tor Michael Yee notified Wessels that the ously diverted streams and increased sandwiched between the Mauna Lani department had rejected his EISPN. Yee minimum flows in several more. Also, resort and the Village of Waikoloa, in cited numerous problems with the draft the Department of Hawaiian Home the Big Island district of South Kohala, EISPN, including zoning designations, Lands holds a reserved right to some of the preparation of an acceptable EIS claims that a previous, 2010, EIS that was the water. has been one of the biggest stumbling deemed inadequate described the current Alexander and Baldwin no longer blocks to development of what Wes- project, and an increase in the number owns the lands in Central Maui that were sels now calls the Town of ‘Aina Le‘a, of units over what had been previously the rationale for the development of the consisting of 20 residential villages over approved by the county and the Land EMI system, starting in the 1870s. It sold the next two decades. Infrastructure Use Commission. those lands to Mahi Pono in December Undaunted, Wessels still had the 2018. But it retains an ownership interest Environment Hawai‘i scheduled meeting on September 26. in EMI. According to the DEIS, A&B 190 Keawe Street, Suite 29 No one from the Planning Department and Mahi Pono are co-owners of EMI. Hilo, Hawai‘i 96720 attended. In addition to serving Mahi Pono Patricia Tummons, Editor lands, the DEIS states, the diverted water Teresa Dawson, Managing Editor East Maui DEIS: The draft environ- will supply the Kula Agricultural Park Environment Hawai‘i is published monthly by Environ- mental impact statement for a 30-year ment Hawai‘i, Inc., a 501(c)(3) non-profit corporation. and the Maui Department of Water Subscriptions are $65 individual; $100 non-profits, librar- Supply’s upcountry system. ies; $130 corporate. Send subscription inquiries, address “It is estimated that at full operation changes, and all other correspondence to Quote of the Month Environment Hawai‘i of diversified agriculture, approximately 190 Keawe Street, Suite 29, Hilo, Hawai‘i 96720. 85.22 mgd [million gallons a day] of Telephone: 808 934-0115. “[T]hese changes are outpacing water will be directed to the fields of E-mail:[email protected] Web page: http://www.environment-hawaii.org our ability to address them with Central Maui,” the DEIS states. “Of this Twitter: Envhawaii policy and infrastructure and our amount, approximately 22.7 percent, or Environment Hawai‘i is available in microform through approximately 19.34 mgd, is estimated to University Microfilms’ Alternative Press collection (300 forecasts of future impacts still North Zeeb Road, Ann Arbor, Michigan 48106-1346). be lost through evaporation and seepage Production: Tim Officer are not able to capture the full in unlined ditches and reservoirs located Copyright © 2019 Environment Hawai‘i, Inc. in the Central Maui agricultural fields. ISSN 1050-3285 complexity of the climate system and future damaging impacts.” …. The remaining 65.87 mgd would be Directors used for irrigation…..” Patricia Tummons, President and Treasurer — Jeff Polovina A link to the DEIS is available on the Deborah Chang Teresa Dawson Vice President Secretary Office of Environmental Quality’s web- Valerie Monson, Director site. Comments are due November 7. October 2019 ■ Environment Hawai‘i ■ Page 3

Spalding replied only that all advisory Fishery Council Struggles to Justify body meetings are publicized. None of these sessions, however, were listed on the Expenses for 2018 Meeting at Maui Resort council website or noticed in the Federal Register, which is where council and com- n articles published in February and cross paths with the council, since com- mittee meetings are formally publicized. IJune, Environment Hawai‘i reported mittee meetings are held the week before She referred the questions to council staffer on expenses related to the Western Pacific the council meets. The committee chair, Mark Mitsuyasu, who did not provide a Fishery Management Council’s meetings currently Seattle attorney Jim Lynch, holds response. held at the Wailea Beach Resort - Mar- a seat on the council and is tasked with re- What’s more, the Advisory Panel did riott on Maui in June 2018. We found laying the committee’s recommendations not have a regular meeting on Maui, so that the cost to taxpayers came to around at each council meeting. it is unclear why three of its members $300,000, and council costs alone were In addition to Lynch, the only SSC would be paid double what they’re paid about $200,000 above the norm. member to actually attend the Maui coun- when they actually do meet, and the rest In our June article, we pointed out cil meeting was David Itano and none of who attended the Maui council meeting several questionable expenses that council the council members attended the SSC weren’t paid at all. staff had not explained by press time. After meeting. Of the 12 SSC or AP members who the article came out, council communi- Also, the council has never held SSC received compensation for their attendance cations officer Sylvia Spalding emailed meetings in American Samoa, Guam, at the Maui meetings, only one responded the council’s explanations. Follow-up or the Commonwealth of the Northern to questions about whether or to what questions were, again, not answered by Mariana Islands in advance of council extent they participated in any planning press time. meetings there. As we reported in Febru- sessions held in addition to their normal Family Perks: EH noted that Roy ary, the council has, however, held SSC duties. SSC member Ray Hilborn of the Morioka, an O‘ahu-based bottomfish meetings on Kaua‘i and Hawai‘i island in University of Washington, replied, “I don’t fisherman and a former council chair and the weeks before the council met in Pacific know of any other meetings other than the committee member, had his airfare and Island territories. regular SSC sessions.” lodging paid for by the council. Double Pay: We reported that SSC Moral Support: Our June article noted Spalding admitted that Morioka was and AP members received double the that the council paid to fly in several not a current member of any council compensation they normally receive when Advisory Panel members from outside committee or panel, but was a member of their meetings are held in . Three of Maui, even though the panel did not a working group that assisted the federal AP members received $800 each and eight have a scheduled meeting there. Spalding Pacific Islands Fisheries Science Center SSC members received $1,500 and SSC pointed out that AP members contributed in preparing its Main Hawaiian Islands chair Lynch received $2,000. significantly to the process leading to an bottomfish stock assessment. The compensation summary provided increased Annual Catch Limit (ACL) for “This working group provided scientific to Environment Hawai‘i by the council Main Hawaiian Islands bottomfish, which advice to the council at its June meeting states only that the payments to the AP was voted on by the council at the June relating to the council’s action on the MHI members and Lynch was for their par- 2018 meeting. bottomfish,” Spalding wrote. ticipation in the 173rd council meeting, “Maui Nui has historically been the Hawai‘i Pacific University professor and the payments to the rest of the SSC center of Hawai‘i’s bottomfish fishery Samuel Kahng was also an O‘ahu-based members were for their participation in for its extensive bottomfish habitat and member of the group and attended the the 129th SSC meeting. sheltered waters. For this reason, Maui was council meeting on Maui. The council Spalding, however, stated that they the appropriate location for [the council] did not foot his bills, however. received additional compensation because to take action on the Hawai‘i bottomfish Passing Ships: In addition to holding they “participated in planning sessions, ACL because the majority of the fishermen its meeting at the Wailea resort, the council which included interviews with members to be affected by the council’s action at this chose to hold its Scientific and Statistical on future research and changes to manage- meeting are based in Maui. The council Committee meeting there, as well. Nearly ment regimes.” relied on the AP members’ reports and a dozen committee members — most of “SSC and AP members are paid com- recommendations to inform its decision whom are from the U.S. mainland or pensation in accordance with NOAA on this action. Thus, the council benefit- abroad — attended the committee meet- [National Oceanic and Atmospheric Ad- ted from the presence of the full AP at the ing, held June 6-8, 2018. ministration] guidelines for all approved June meeting,” Spalding wrote. Spalding didn’t offer much of an expla- meetings at which they are providing Staycation? As we reported in June, the nation why the SSC had to meet on Maui. assistance to the council in carrying out council paid for Advisory Panel member She stated simply, “The SSC convened on its fishery management functions,” she and bottomfish fisher Layne Nakagawa to Maui because the council convened on wrote. stay at the Marriott, even though he lives Maui to discuss the bottomfish Environment Hawai‘i asked her for on the island. Spalding explained that the action, and the SSC provides scientific more detail on these sessions: Were they council paid for one night for Nakagawa advice to the council relating to its fishery noticed in the Federal Register? Where “as he was requested to participate in an management actions.” were they held and when? With whom? Is evening meeting regarding the bottomfish Even when both the committee and the there a record of who exactly participated? fishery. This minimized disruption and council meet on O‘ahu, SSC members — What were the subjects covered? Is there a allowed him to return to normal fishing except for the committee chair — don’t record of the outcome of these sessions? operations in a timely manner.” —T.D. Page 4 ■ Environment Hawai‘i ■ October 2019

PTA from page 1 meeting with state attorneys this month to later condemned because it was deemed too After a trial, Chang ruled on April 3, discuss possible changes to the plan. expensive to clear of ordnance. 2018, that the state had breached its trust During the Circuit Court trial last duties to conduct reasonable inspections to The Bad Old Days year, DLNR Land Division agent Kevin ensure that the lands within the PTA aren’t The U.S. military’s lease covers three tracts Moore testified that since the lease began harmed by its lessee. This despite it having of ceded land at Ka‘ohe, Hamakua, and in 1964, there were records of just three good reason to believe those lands were in Pu‘uanahulu and expires on August 16, 2029. state inspections of the PTA area. While his danger of being or may have already been The lease requires the military to “make division tries to inspect leased lands once harmed. He also ordered the state to de- every reasonable effort to … remove and every two years, the PTA lands are harder velop a management plan for the lease area deactivate all live or blank ammunition upon to inspect because of their rugged terrain that includes periodic site inspections and completion of a training exercise or prior to and sheer size. more detailed reports, as well as a procedure entry by the public, whichever is sooner.” In its ruling, the Supreme Court took to improve transparency. It must also take reasonable steps to note of the inadequacy of those inspections. In her April letter, Sylva reminded Chang “prevent unnecessary damage or destruc- There was “one from 1984 that indicated that her clients’ testimony and photographs tion to vegetation, wildlife and forest cover, the inspection lasted ‘no more than one of the litter at PTA played a large role in his geological features and related natural day,’ which Moore acknowledged was not decision to require a management plan. resources” and to “avoid pollution or con- enough time for an inspector to inspect She offered an amended plan that would tamination of all ground and surface waters the 22,900-acre property on foot; one from allow observers to take photos and record and remove or bury all trash, garbage and 1994 that was not signed and did not have debris on the lands only if the Army does other waste materials” resulting from its anything written in the spaces denoted for not object. Her plan would also require any use of the area. the condition of the land or the findings public dissemination of those records to If required by the state at the end of the of the inspection; and one from December receive approval from the NHLC and the lease term, the military would also have to 2014” — well after the NHLC sued the state state’s attorneys beforehand. remove weapons and shells from training — “that indicated that the premises were in Chang did not sign any version of the activities “to the extent that a technical and unsatisfactory condition but did not contain plan pending the state’s appeal to the economic capability exists and provided any determination as to whether the United Hawai‘i Supreme Court. On August 23, that expenditures for removal of shells States was in compliance with the lease,” the the high court largely upheld Chang’s de- will not exceed the fair market value of Supreme Court decision stated. cision but made a few of the components the land.” of the plan recommendations, rather than The U.S. military has a history of leaving Prior Knowledge requirements. training grounds in the islands severely, if Well before the 2014 inspection, the DLNR Once Chang approves a final plan, the not irreparably, damaged. To name but a was aware of possible contamination of state must execute it, the Supreme Court few: The entire island of Kaho‘olawe, the its lands within the PTA. Land Division ordered. According to a DLNR spokesman, ‘Ahihi-Kina‘u Natural Area Reserve on administrator Russell Tsuji testified to the plan is still under internal review. And Maui, Makua Valley in West O‘ahu, and the Circuit Court that his agency’s lease Sylva’s co-counsel, former NHLC attorney Waikane Valley in East O‘ahu, which the file contained letters and reports from the David Kimo Frankel, indicated they will be military leased from the Kamaka family and Army documenting a need to clear the area, “including a 2006 report indicating there was debris in the BAX [battle area complex] within the PTA; a 2008 report stating that there may have been munitions on PTA land; a 2013 final environmental impact statement stating that UXO was ‘known to exist in impact area’ and that ‘there [was] also a medium risk of finding [UXO] outside [the construction] area’; and a 2014 report stating that ‘[t]he mili- tary need[ed] to implement some kind of clean-up process as part of their training in PTA’ because’ [r]emnants of military trash [were] everywhere … including unexploded ordnance that was carelessly discarded,’” the Supreme Court’s deci- sion stated. It continued, “When asked about the DLNR’s response to one of the reports, Tsuji testified that he did not know if anyone at the DLNR ‘actually read’ the report and Maneuvers at the Pohakuloa Training Area. Continued to page 5 October 2019 ■ Environment Hawai‘i ■ Page 5 noted that there was no record on file that action that grew out of those inspections 7, 2018 agenda, but no submittal was pro- the DLNR ever responded.” “should include a projected or reasonable vided. The board met in executive session Moore had also testified that “a 2013 estimated time within which to take action,” to discuss the plan with its attorney, but memorandum circulated within the DLNR the March version stated. And if the inspec- did not take a vote in public, with chair suggested the leased PTA land should be tion reveals a lease violation that might Suzanne Case later explaining that it was a swept for UXO to be removed at the United adversely affect the land’s condition or the non-action item, according to the meeting States’ expense, but DLNR did not ask the lawful use of the area for cultural purposes, minutes. Nonetheless, the board’s attorneys United States Army to clean up any am- or if it involves unexploded ordnance or submitted a plan to the court later that munition as a result of the memorandum,” other contaminants from military training, month. the decision stated. the state must investigate and initiate ap- “BLNR was supposed to approve the Also in 2014, the Army sent the DLNR propriate enforcement actions authorized plan at a public meeting, but never did. an action memorandum stating that “a under the lease and state law. … The process that defendants followed bazooka range within the PTA was heavily Factual disputes over whether the lease prior to submitting this management plan contaminated with explosive hazards, am- terms were violated would be resolved by to the court was inconsistent with both the munitions, and debris that posed a signifi- agreement or by the Division Engineer of law and any notion of transparency,” the cant danger to public health and welfare,” the U.S. Army Engineer Division. NHLC wrote. it continued. The state would also support efforts Whether the March version or a new In addition to these records, Ching, a to seek federal funds for any cleanup of version of the plan will be brought to the member of the Pohakuloa Cultural Advi- ordnance or military-related debris or Land Board for approval before Chang sory Committee, testified that during his contaminants. signs it remains to be seen. In his March bimonthly trips to the area, he saw blank The March version, while it included decision on the plan, Chang chose not to ammunition and other military debris amendments to address some of the con- rule on whether or not the board should strewn around. Kahaulelio offered similar cerns raised by the NHLC, did not address have approved it before it was submitted testimony, as did witness Kealoha Pisciotta, all of them. In a February request to Chang to him, and left that matter to be resolved a former cultural monitor for PTA’s battle to reject the state’s December version of “by another tribunal.” —Teresa Dawson area complex. the plan, the NHLC pointed out that it lacked maps of the areas to be inspected. ‘Reasonable Monitoring’ Also, given the vast size of the lease area, it For Further Reading In its decision, the Supreme Court described recommended that inspections occur annu- Environment Hawai‘i has pub- the leased area as ceded lands that are part ally, rather than every two years, “to better lished several articles over the years of the public lands trust. And as trustee of ensure that any needed clean-up or other regarding the military’s use of lands those lands, the state had “the highest duty” maintenance is undertaken in a prompt and in Hawai‘i and the Pacific. The to preserve and maintain them, it stated. appropriate manner.” following is a short list. Check “[T]his obligation includes an obligation them out at our website, www. to reasonably monitor the trust property,” it Transparency environment-hawaii.org. continued. “Reasonable monitoring ensures The proposed plan states that any lease that a trustee fulfills the mandate of ‘elemen- termination or enforcement actions “re- • “From Fertile Fields to No- tary trust law’ that trust property not be quired by law to be the subject of a sunshine Man’s Land: The Transforma- permitted to ‘fall into ruin on [the trustee’s] meeting shall include the opportunity for tion of Waikane Valley,” “Use watch.’ To hold that the state does not have plaintiffs or other members of the public of Islands by Armed Forces an independent trust obligation to reason- with standing to provide input and/partici- Leaves Few Stones Unturned,” ably monitor the trust property would be pate as allowed by the Chapter 91, Hawai‘i “Restoration, not Condemna- counter to our precedents and would allow Revised Statutes.” It adds that the Land tion: Hawai‘i has no Land to the state to turn a blind to imminent Board will provide reasonable transparency Spare,” Editorial, August 1992; damage, leaving beneficiaries powerless to to the plaintiffs and the general public with prevent damage before it occurs.” regard to the plan’s implementation, and • “Editorial: Army Lays Waste In response to Chang’s order to develop comply with all laws regarding the rights Riches of Makua Valley,” and a plan that would establish a reasonable of the plaintiffs or the public to contest the related articles, November monitoring schedule, the state submitted board’s decisions regarding its adoption or 1992; a draft in December 2018 and an amended implementation of the plan. • “The Battle at MPRC: How version in March of this year. It called for The NHLC called these transparency One Woman Took on the inspections to occur at least once every provisions illusory, noting that the plan U.S. Army, And Won,” and two years. They “should be supported by includes no mechanism for informing related articles, January 1997; appropriate photographic or videographic the public of or eliciting comment on the entries” and would also include live or plan. • “Bombs Old and New Dev- remote monitoring of training subject to It pointed out that the December version astate Reefs in the Northern limitations for safety or national security, of the plan was not approved by the Land Mariana Archipelago,” August under the draft plan. Board at a public meeting. Consideration 1998. Any recommendations for corrective of the plan was on the board’s December Page 6 ■ Environment Hawai‘i ■ October 2019

The court also held that the state had a Pohakuloa Ruling Spurs Motion duty to reasonably monitor “a third party’s use of the property, and that this duty exists For Reconsideration in Kahala Case independent of whether the third party has in fact violated the terms of any agreement n October 1, 1st Circuit Judge Jeffrey on the parcel — Crabtree stated that the governing its use of the land.” OCrabtree was scheduled to hear argu- Hawai‘i Supreme Court has only applied The court’s ruling led Frankel, an at- ments on David Kimo Frankel’s latest mo- the public trust doctrine to water and lands torney for the plaintiffs in the Pohakuloa tion in his fight against a revocable permit in the Conservation District, which this case, to ask Crabtree to reconsider his ruling the Board of Land and Natural Resources parcel was not. regarding the application of the public trust issued in November 2018 to ResortTrust “[T]here is no recognition under Hawai‘i doctrine to the Kahala parcel. Hawai‘i, LLC for use of a beachfront parcel law that the public trust doctrine applies to Frankel’s motion for reconsideration, fronting the Kahala Hotel & Resort. this urban parcel,” Crabtree wrote in a July filed September 6, is one of the first mo- Despite holding a permit that allowed minute order. tions — if not the first motion — relying for recreational and maintenance purposes But in its August 23 ruling in a case in- on the high court’s decision, which found only, the hotel had for years been con- volving the Land Board’s management of that the Land Board had breached its trust ducting what most would consider to be its lease for the Pohakuloa Training Area duty to protect lands leased to the U.S. commercial uses on the property: renting (PTA) on Hawai‘i island, the state Supreme military as part of the PTA (see related story beach cabanas and other equipment, plac- Court held that under the state constitu- in this issue). ing a portion of a restaurant in the area, and tion, “all public natural resources are held The area covered by ResortTrust’s re- hosting weddings. in trust by the state for the common benefit vocable permit has been identified by the Last month, Environment Hawai‘i of Hawai‘i’s people and the generations Department of Land and Natural Resources reported on how Judge Crabtree largely to come. Additionally, the constitution (DLNR) as ceded land. rejected Frankel’s arguments that an envi- specifies that the public lands ceded to the “The Supreme Court’s recent decision ronmental review would need to be done United States following the overthrow of in the Pohakuloa case demonstrates that and a Special Management Area use permit the Hawaiian Monarchy and returned to the BLNR defendants do in fact have trust obtained in advance of the Land Board’s Hawai‘i upon its admission to the Union duties in managing the beachfront parcel,” award of the permit. The judge also dis- hold a special status under our law. These Frankel argued. agreed with Frankel’s claim that the board lands are held by the State in trust for the He pointed out that Russell Tsuji, ad- needed to draft better rules to govern the benefit of Native Hawaiians and the general ministrator for the DLNR’s Land Division, issuance of its revocable permits. public. Accordingly, our constitution places stated in a declaration that the Land Board With regard to Frankel’s claim that the upon the State duties with respect to these had never authorized commercial use of the board had breached its public trust duties trusts much like those of a common law permit area. Despite the fact that Resort- in issuing the permit — which allowed trustee, including an obligation to protect Trust admitted that at certain times between for the setting and possible renting of and preserve the resources however they July 1, 2016, and June 30, 2018, it rented cabanas, loungers and other equipment are utilized.” clamshell lounge chairs and cabanas, sold and served food and alcohol, and hosted weddings (for which it charged thousands of dollars), the state’s attorneys refused to concede that commercial use occurred on the property during that time. The hotel has since removed all cabanas and clamshell loungers and its restaurant from the parcel and no longer holds wed- dings there. Even so, Frankel argued that the Land Board allowed a “multi-million dollar corporation to illegally profit off of public land with impunity. It was unrea- sonable, and a breach of its trust duties, for the BLNR defendants to ignore obvi- ous commercial uses of Lot 41 and fail to collect additional rents and fines for the unauthorized uses.” In light of the Pohakuloa decision, Frankel asked the judge to grant his mo- tion for summary judgment with regard to his claim that the Land Board breached its trust duties. If the motion is granted, the Land Board will either have to initiate an enforcement action or justify to the court k el Fran Kimo d Davi P hoto: Cards stating, “Reserved,” sit on tables set between beach chairs on the state parcel. why it did not pursue one. —T.D. October 2019 ■ Environment Hawai‘i ■ Page 7

State, County Agencies Struggle purchasing new light-duty vehicles, to “seek vehicles with reduced dependence With Transition to Electric Fleets on petroleum-based fuels that meet the needs of the agency.” It also established a t wasn’t long ago that transitioning to tion Commission, HNEI’s Electrification hierarchy of those types of vehicles, with Ihybrid gas-electric vehicles was seen of Transportation project leader Katherine the most-preferred being electric or plug-in as a better way to reduce greenhouse gas McKenzie reported that as of 2018, an EV hybrid vehicles. emissions on O‘ahu than going purely on O‘ahu already had a miles per gallon Since then, however, state and county electric. equivalent (MPGe) of about 50, which is fleets remain largely gas-powered. The state Unlike the neighbor islands that gener- roughly that of a hybrid such as a Toyota alone has 1,333 light-duty vehicles, accord- ate more of their electricity from renewable Prius. She projected that the MPGe for ing to an inventory by commission staff. sources, O‘ahu is still heavily dependent on O‘ahu EVs would only increase, albeit At the commission’s meeting, Brian fossil fuels, including coal, for its electric- slightly, in the next couple of years. Saito, head of the Department of Ac- ity. “Until O’ahu substantially transitions McKenzie’s findings mirror those pre- counting and General Services’ Automo- towards greater penetration of renewable sented at the same meeting by Blue Planet tive Management Division, attributed sources for electricity, it may be too early Foundation’s clean transportation director his reticence to EV adoption to the poor to tout EVs [electrical vehicles] on O‘ahu Lauren Reichelt. Both presentations pro- performance of a slew of Nissan Leafs he as a GHG emissions reduction strategy. … vided the backdrop to the commission’s purchased for his department in 2011. The O‘ahu’s electricity generation mix must be- discussion of how and to what extent the batteries never delivered the range they come similar in carbon intensity to that of state should transition its fleet of thousands were supposed to, dropping from a start- Kaua‘i and Maui to make high performing of vehicles from gas to electric. ing range of 100 miles down to 50, he said. EVs at least comparable to high performing Despite their findings, however, some “People refused to drive it, so we started HEVs [hybrid electric vehicles] in GHG state officials were clearly wary about going with Priuses,” he said. emissions,” states an executive summary making any significant changes to their However, he added that 2019 is the first of the University of Hawai‘i Economic fleets and expressed concerns over the year he believes the mileage delivered by Research Organization’s 2016 Electric reliability of EVs and inadequate charging EVs should be good. He’s acquired one Vehicle Greenhouse Gas Emission Assess- infrastructure. new Nissan Leaf so far, but is waiting to ment for Hawai‘i. UHERO prepared the see how it performs before ordering more. assessment for the Hawai‘i Natural Energy Hierarchy “I don’t want to do a whole slew of them Institute (HNEI). In 1997, the state Legislature established a and it doesn’t work out again,” he said. (It How quickly things have changed. state policy to encourage the use of EVs. should be noted that as part of its warranty, In a presentation last month to the state And a decade ago, it passed a law requir- Nissan would have replaced the poorly Climate Change Mitigation and Adapta- ing all state and county agencies, when Continued on next page Page 8 ■ Environment Hawai‘i ■ October 2019 performing batteries of those old models, Highways Division, at least, has embraced among those required to provide chargers free of charge.) the notion of transitioning to EVs and is to make sure they actually function. She Saito said managers of fleets for other working with the state Energy Office on said the various charging stations on the agencies are probably not even thinking a study assessing charging infrastructure island are operated by a variety of differ- about buying electric vehicles and that needs for its current fleet of more than ent companies, which sometimes makes it’s important to educate them about 60 light-duty vehicles, as well as needs of them difficult to use. She recommended what EV’s can do. The lack of charg- medium and/or light duty EV trucks that that there be a statewide vendor “so there ing infrastructure might frighten them, may be purchased in the future. isn’t a public perception that charging is he said. difficult.” Department of Health administrator Charging Infrastructure For the 9,360 registered EVs in the state, and commission member Bruce Anderson While, as Case said, charging infrastructure there are 495 public charging ports, fewer was certainly one of those worried about doesn’t have to be perfect to ensure that than 10 percent of which are fast-chargers. that. His department has 118 light-duty government employees driving EVs won’t To improve the EV charging infrastructure vehicles, according to the inventory. An- run out of power while working, commis- statewide, the Legislature this year passed derson said some of his staff are in their sion members acknowledged that more a law that establishes a rebate program for cars all day long and make 15 to 20 stops a needs to be done to at least maintain the parties willing to install new chargers or day, doing a variety of activities. Nurses, infrastructure that exists. upgrade old ones. The state Public Utili- for example, drive 150 miles a day, ties Commission, which will he said. He argued that the driving administer the program itself or patterns of DOH workers would through a third-party contrac- push “the limits of what an EV tor, will provide $4,500 for the can accomplish.” installation of two or more new “Reliability is huge for a lot of Level 2 ports, $35,000 for a new our staff,” he said. fast charging system, $3,000 Reichelt suggested that Ander- for the upgrade of two or more son should have a consultant take Level 2 ports, and $28,000 for an inventory of what’s actually the upgrade of a fast charger. driven by his staff. She pointed Total annual rebates would be out that some of the new EVs

E nergy capped at $500,000. have a range of 240 miles on a The Legislature also passed fully charged battery. “You can a bill requiring all agencies to drive around the island twice,” identify and evaluate vehicle she said. fleet energy efficiency programs Still, Anderson worried about o f Department U . S “that the agency may implement the lack of charging infrastructure

PHOTO : using vehicle fleet performance in places such as Puna on Hawai‘i The Hawai‘i Climate Change Mitigation and Adaptation Commission has called contracts.” island and the rural island of for a lead agency to help state and county fleets transition to electric vehicles. Even so, state Rep. Nicole Moloka‘i. Lowen, who chairs the House According to the Hawai‘i State Energy In 2009, the Legislature passed a law Energy and Environmental Protection Office, Moloka‘i has no public charging requiring parking facilities with at least 100 Committee, said that there needs to be ports, and Hawai‘i island has 43. Even so, spaces to designate one percent of them for there are 35 and 508 registered EVs on those EVs by the end of 2011, and also required more discussion of how to make sure islands, respectively. them to provide an EV charging unit. That charging stations are working and the in- Department of Land and Natural Re- percentage would increase, to a maximum frastructure benefits the electrical grid. sources director Suzanne Case, who said of 10 percent, as the number of registered Speaking to the commission’s overall she owns a 2013 Nissan Leaf, said that the EVs in the state increased. discussion on EVs, Case said, “This is all charging infrastructure doesn’t have to be While the law established penalties for about us groping our way forward. This perfect. She pointed out that EVs can be people who parked non-electric vehicles in is what I call participating in the mess. charged using a regular outlet. “You don’t designated EV parking stalls, it did not set … This discussion of is going on at the have to have Level 2 or 3 [standard 240-volt penalties for developers of parking facilities governor’s office level.” and fast-charging EV ports, respectively] in who failed to install chargers as required, In the end, the commission unanimously your garage for this to work,” she said. nor did it designate an enforcement called for a lead entity to identify and un- Reichelt added that people will be un- agency. Since charging units can cost a few dertake activities that will help state and comfortable driving EVs at first, but once thousand to tens of thousands of dollars counties agencies to transition their fleets they change, they’ll like it. In her presen- or more to install, many parking facilities to “clean, renewable fuels,” including co- tation, she noted that by about 2024, the have ignored their obligations. ordinating any necessary implementation, upfront cost of an electric car will equal “On Maui, we’re having collapsing serving as a technical resource and reaching that of a gas-powered car. infrastructure,” said one meeting partici- out to fleet managers, and regularly updat- The Department of Transportation’s pant, who called for greater accountability ing the commission. —T.D. October 2019 ■ Environment Hawai‘i ■ Page 9 Hydrogen Buses May Finally Make Debut on the Big Island

he Big Island is on the verge of testing the National Park Service as a donation. Tthree hydrogen-fueled buses. All the county pays is $500 per bus as a It’s been sitting on that verge for more “service and handling fee” to the Surplus than five years, but, according to Riley Saito, Property Office. with the Hawai‘i County Department of Just what the county will pay to put these Research and Development, just a few vehicles on the road is uncertain. The only NELHA more tweaks are all that’s needed before the hydrogen filling station on the Big Island P hoto: hydrogen buses are added to the county’s is at the Natural Energy Laboratory of The hydrogen filling station at NELHA. Hele-On fleet. Hawai‘i Authority (NELHA), on the Kona At least two of them, anyway. side. Saito told Environment Hawai‘i that $707,500, paid to US Hybrid by the Ha- Those two are 19-passenger vehicles that the NELHA hydrogen station was not yet waii Center for Advanced Transportation were supposed to be used as shuttles for visi- permitted to operate by the county Fire Technologies (HCATT), a state agency tors to Hawai‘i Volcanoes National Park. Department. run through the High Tech Development In August, the Hawai‘i County Council ap- While hydrogen buses are touted as Corporation. proved resolutions authorizing the mayor to zero-emission, the process of generating Margaret Larson, the transportation accept the donation of the two buses – “2012 hydrogen uses energy. The NELHA facil- specialist at the Department of Business, F550 ENC Aero Elite” buses, outfitted to ity relies on power from the HELCO grid Economic Development, and Tourism’s run on hydrogen – from the state’s surplus and the HELCO power station closest to Energy Office, could not identify any property office. NELHA is an oil-fired plant. facility that routinely uses hydrogen buses Although the Department of Energy’s In June, the Hawai‘i County Council in Hawai‘i. Some had been proposed for National Renewable Energy Laboratory held an informational hearing on the status shuttles at the Honolulu airport, but none (NREL) noted that in 2018, the cost of a of hydrogen buses. Council members were is operating there yet. Alan Yonan, with hydrogen bus averaged $1.92 million, the told then that a third hydrogen bus – a 29- the Energy Office, said that HCATT “has county is getting them practically for free passenger, brand new Ford F550 Eldorado retrofitted several military vehicles with through the state’s Surplus Property Of- – was on O‘ahu and ready to be delivered hydrogen fuel cells for use at Hickam Air fice. That agency received the buses from to the county. That cost of that vehicle was Force Base.” —P.T.

Polovina from page 1 rigorous as possible with the best avail- Islands unable to support the wildlife assem- Research awards for work in Kenya and able models, conveyed climate change as blages found nowhere else? Hurricane Walaka the Galapagos Islands. He holds faculty a gradual change. However, what we are caused East island in to appointments in the Oceanography and seeing is that many of the models and disappear in 2018. Should we expect to see more Marine Biology departments at the Uni- IPCC projections underestimated the rate of this type of storm in the future? verity of Hawai‘i and also serves as senior of change we are now observing. But now, In the past the NWHI was exposed to fellow at the Joint Institute of Marine and with all the wildfires, heat waves, stronger hurricanes and strong North Pacific winter Atmospheric Research in Hawai‘i. He is and wetter storms, etc., people are becoming storms/waves and in the past coral reefs have a recipient of the 2010 Wooster Award more aware of how serious a crisis climate recovered from the damage. Now they face from the North Pacific Marine Sciences change is. The challenge remains. As you’ve additional stressors – bleaching, acidifica- Organization. stated, these changes are outpacing our tion, and sea level rise – all making recovery Fun fact: Polovina is also the author of ability to address them with policy and more difficult. two children’s books, The Case of the Fish infrastructure and our forecasts of future 2015 and 2016 were the warmest years on with the Curious Bite and The Case of the impacts still are not able to capture the full record in Hawai‘i. But this summer, weather Outlaw Dolphins. complexity of the climate system and future stations across the islands were reporting In anticipation of Polovina’s talk, Envi- damaging impacts. record-high temperatures or record-matching ronment Hawai‘i editor Patricia Tummons Another recent event, Hurricane Dorian, temperatures. Over the 30-day period in Kahu- posed several questions to him: practically leveled the Bahamian islands where lui from August 17 to September 16, records were In recent weeks, the news from Greenland it sat for several days. Those flat islands differ set or tied on 29 days. Reported temperatures and the polar regions has been grim, with both from the populated islands of Hawai‘i but the at all four airport weather stations showed land and sea ice showing signs of melting at prospect of more numerous and more severe daily highs and lows higher by several degrees rates faster than anything anticipated by the hurricanes, fueled by warming ocean waters, from historical average highs and lows. Across Intergovernmental Panel on Climate Change is still one that Hawai‘i needs to take seriously. the state, from August 24 through September in its most recent report. Are changes in the Should the state now be preparing for hurri- 17 (today), a high temperature record was set global environment outpacing not only our canes that match Dorian in intensity? or tied somewhere in Hawai‘i every single ability to deal with them – through changes That would be prudent and hopefully day. In August, the maximum temperature in policy and funding of new infrastructure that is being done. at the Honolulu airport exceeded 90 degrees – but also our ability to grasp their full im- Following up on that, is it possible that on 27 days – which is 20.3 days more than the plications? ever-stronger storms and hurricanes could ren- normal value of 6.7 days. In the same period, Yes. The IPCC, in its attempt to be as der the atolls of the Northwestern Hawaiian Continued on next page Page 10 ■ Environment Hawai‘i ■ October 2019

was more of a concern for Hawai‘i County’s Waimea, ‘Anaeho‘omalu Aquifers Remain Leeward Planning Commission. Commissioner Kamana Beamer noted Separate in Updated Water Resources Plan that only a single isotope study was being offered as justification for the merger and fter more than a decade, the Commis- members of the Water Commission were also expressed concern about “treating wa- Asion on Water Resource Management briefed by staff on isotopic evidence that ter like a bank account, and I’m just going finally updated its Water Resources Protec- suggests that the Waimea and adjacent to borrow from our neighbor next door, tion Plan (WRRP) earlier this year. As ad- ‘Anaeho‘omalu aquifers are connected. ‘Anaeho‘omalu, without thinking of these opted, the plan seems to put the brakes on a Groundwater program manager Roy Hardy larger issues like [groundwater management proposed 1,200-unit residential development told the commission that his agency and “a area] designation, planning, and prioritiz- on 1,500 acres in the South Kohala district of group of professionals” — including hy- ing.” West Hawai‘i. The new town, to be called drologists and representatives from the state Hardy explained that those were “end Nakahili, would be built by Maui-based Department of Health, the U.S. Geological of the pipe” issues, which are separate from Work Force Developers, LLC, and draw its Survey, the University of Hawai‘i’s Water characterizing the aquifer. He added that water from the Waimea aquifer. Resource Research Center, and consultants water levels in the Waimea aquifer have Before the WRRP update, that aquifer had who work in the area, among others — are been steady, suggesting that it is not at risk a sustainable yield (SY) of 24 million gallons proposing to combine the two aquifers into of overuse. a day. The update, however, reduced the SY one. “It appears more consistent with hydro- Beamer suggested that Hardy get input to 16, based on recharge estimates from a 2011 geologic data and it’s a simple management from people who have lived in the area on report by the U.S. Geological Survey. change to address a perceived threat to the how the climate has changed. “My great- As Environment Hawai‘i reported in Waimea area,” he said, according to minutes grandparents were seeing the misty rain February, 13.83 mgd, or approximately 86.4 of the meeting. come into Waimea almost daily around this percent of the sustainable yield, is already Merging the aquifers would result in a time; it has changed where we have periods being used. With a SY of 16 mgd for the sustainable yield of 46 mgd. of drought and some intense periods,” he Waimea aquifer, “the full build-out of Naka- Commissioner Neil Hannahs asked said. hili may not be realized and alternative plans Hardy whether merging the aquifers might Hardy said he thought the commission’s may be pursued,” the draft environmental mask the need to temper growth or optimize low recharge estimates for Waimea reflect assessment for the project states. recharge. some of those changes. At a meeting held in Waimea in June, “It might,” Hardy replied, but added that Continued on next page

Polovina from page 9 Hawai‘i. A website set up by Greg Asner’s lab and the Western Pacific Fishery Manage- Kahului saw 24 90-plus degree days, 19.7 more allows citizens to report locations of bleached ment Council to increase the allowable catch than the normal value of 4.3. At Lihue, the 10 coral around the islands and note the severity of bigeye in the Western Pacific. Do you see 90-plus degree days was 100 times the normal of bleaching, and bleached corals have been any encouraging signs that both the industry value of 0.1. As a layperson, I’m alarmed by reported on all inhabited Hawaiian islands, and its regulators may curb their short-term these records. At what point do we say this isn’t from Hilo to Ni‘ihau, and on up the Hawai- interests in the hope of protecting the resource just the weather, but it’s a dramatically, and ian chain all the way to Kure. It’s known that over the long term? quickly, changing climate? repeated episodes of bleaching make it difficult So far I haven’t seen any evidence that Yes. I’ve been tracking these develop- for corals to recover. But when you add the the two Regional Fisheries Management ments closely as they resemble those of increasing acidity of ocean waters to the mix, Organizations, Inter-American Tropical 2015. I’ll talk about the large-scale ocean won’t that exacerbate the problem? Tuna Commission and the Western and and atmosphere changes that appear to be Yes, the recent repeated bleaching is re- Central Pacific Fisheries Commission, contributing to this 2019 heat wave. There’s ally stressing many corals and it is unclear have developed climate-informed reference a perception that temperature will slowly if some can adapt quickly enough to adjust. points in their management. Part of the and gradually increase over time but the Some species or some locations may prove challenge is that there is so much we don’t climate system is complicated and tipping resilient. However, the evidence is not com- know about how the entire food web and points occur that can give rise to large forting as the 2015-2016 bleaching off West highly mobile fishes at the top will respond shifts. For example, bleaching is Hawai‘i resulted in substantial mortality to to climate change. For example, virtually a classic example of a tipping point where corals. Adding to the thermal stress is the all the studies project declines at the base temperature increases gradually and not long-term decline in pH that increases coral of the food web but changes in the food much happens then suddenly, with just a mortality and reduces growth adding to the web structure, and/or the species mix in the little more warming, widespread bleach- thermal stress. middle of the food web could greatly impact ing occurs. The recent heat wave may be A study published earlier this year by the energy flow to apex species. the result of such a tipping point in the Phoebe Woodworth-Jefcoats and others con- Polovina will speak at Environment jet stream impacting mid-latitude ocean cluded that “a decline in Hawai‘i’s longline Hawai‘i’s dinner, November 8, 5:30 p.m., temperatures with links to Hawai‘i trades fishery yield may be inevitable” as a result of at the ‘Imiloa Astronomy Center in Hilo. and sea surface temperatures. I’ll explore both fishing pressure and climate change, but Reservations are $75 per person and may be this in my talk. the effect of climate change on fish populations made by calling our office at 808 934-0115. (The Coral bleaching has been given quite a can be lessened if fishing pressure is reduced. cost includes a $35 donation to Environment bit of attention with the movement of warm The Hawai‘i longline fleet has grown in Hawai‘i.) Please make your reservations by ocean water coming down from the north to recent years, as have efforts by vessel owners November 5. October 2019 ■ Environment Hawai‘i ■ Page 11

CWRM from page 10 these areas will affect and change recharge Kohala/Waimea aquifer boundary as well analysis and quantities; therefore, the SY as the ‘Anaeho‘omalu/Hualalai boundary estimates in this version of the plan are pre- and many others where aquifer boundaries liminary until further confirmation.” reflect the intersection of volcanic deposits While the staff submittal to the commis- of younger volcanoes covering their older sion did not ask for an immediate decision sister volcanoes,” he wrote. on the boundary merger, it included as At the July meeting, Beamer said he background information comment letters on thought it would be premature to vote on the draft plan from hydrologists and the any aquifer boundary changes given the Hawai‘i County Department of Water short briefing at the commission’s previous Supply (DWS) that supported the meeting. Commission staffer Lenore Ohye boundary merger. assured him that any changes to the sustain- In a March letter, the DWS able yields for either aquifer would be done asked the commission to in a separate action. refrain from reducing the The commission unanimously approved Waimea aquifer’s sustainable the plan, with a few amendments not related

M anagement yield to 16 until the aquifer to the proposed aquifer merger. A hearing boundary changes are ready to be on that proposal, however, was scheduled adopted. “DWS believes that adopting for October 3 in Waimea. Commission R esour c e new SY numbers without incorporating staff set a deadline for public comments of potential boundary changes at the same time November 3, and planned to bring the matter could result in an unnecessarily misleading to the commission for decision making on outlook on resource capacity and that it December 17. would be better to include all the pertinent

Commission on Water Water on Commission information available to provide the most ac- v v v CWRM chair Suzanne Case suggested curate determinations for sustainable yield,” that rather than merging the aquifers, Hardy wrote the department’s manager and chief Sparse Reporting might consider just adding a little cushion engineer Keith Okamoto. to the Waimea SY number and monitor- Don Thomas of the Hawai‘i Institute of ater Commission staff can tell a lot ing it. “[I]t seems like if you’re close to Geophysics and Planetology stated in a May Wabout the health of aquifers from over-pumping in one area, you don’t want 12 comment on the plan that results of a drill- deep monitoring wells, which allow for the to pump more because it might not be a ing project in the Humu‘ula Saddle of the tracking of water and chloride levels. But sustainable number,” she said. island, between Mauna Loa and Mauna Kea, knowing how much water is actually being Hardy acknowledged that was a concern, have led him to believe that the boundary line pumped from an aquifer helps managers but cited data provided in 2015 by hydrologist between the Waimea and ‘Anaeho‘omalu understand what’s going on underground, Tom Nance that indicates the proposed 16 aquifers doesn’t serve its intended purpose. “I as well. What’s more, “when actual ground mgd sustainable yield for Waimea did not … am strongly of the opinion that water flow water withdrawals or authorized planned take into account about 10 mgd of possible across currently designated aquifer bound- uses may cause the maximum rate of with- recharge from the Kohala mountains. aries is far more common than has been drawal to exceed 90 percent of the aquifer’s Case then asked whether the merger pro- generally recognized: this would include the Continued on last page posal originated with CWRM staff or was a request from the county or developers. Hardy replied that others had proposed to modify the aquifer boundaries, “but the justification for that is … it’s an opinion. CWRM has combined aquifers in the past.” In 1993, to address similar concerns, the ‘Ewa and Kunia aquifer boundaries on O‘ahu Sign me up for a new renewal subscription at the were combined, as were the Waipahu and individual ($70) non-profits, libraries ($120) Waiawa aquifer boundaries, a commission corporations ($150) economic downturn ($45) report states. At its July meeting, the Water Commis- To charge by phone, call toll free: 1-877-934-0130 sion was asked to approve the WRRP update, For credit card payments: which maintained the 16 mgd SY for Waimea Account No.:______Exp. Date:______and a 30 mgd SY for ‘Anaeho‘omalu. Phone No.:______Mail form to: However, a two-sentence footnote in Signature of account holder:______Environment Hawai‘i the plan indicates that commission staff is “considering amending the boundaries of the name______190 Keawe Street Mahukona, Waimea, and ‘Anaeho‘omalu address______Suite 29 Aquifer System Areas based on observed city, state, zip code______Hilo, HI 96720 behavior of existing wells within those areas. email address ______Changes in boundary conditions amongst We are a 501(c)(3) organization. All donations are tax-deductible to the extent allowed by law. Nonprofit Organization 190 Keawe Street U.S. Postage Suite 29 Hilo, Hawai‘i 96720 PAID Permit No. 289 Honolulu, HI Address Service Requested

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sustainable yield, CWRM may designate the by Earthjustice, on behalf of Moloka‘i No future needs of DHHL protected through area as a water management area and regulate Ka Heke, Moloka‘i Ranch diverts about a water reservations, as well as those identified water use through the issuance of water use half-million gallons of water a day from four in the State Water Projects Plan (SWPP), permits,” the WRPP states. streams on the island. “must be incorporated and recognized in the The commission, however, has never had The petition estimates the ranch could components of the Hawai‘i Water Plan. Ad- a good grasp of how much water is actually have accrued more than $23 million in fines ditional reservations for DHHL are planned being pumped from wells throughout the for failing for more than a decade to report based on the 2017 SWPP future demands.” state, even though well owners and operators its water use. And the Water Use and Development Plans are required to provide pumping data to the The WRPP suggests a number of ways the (WUDP) prepared by each county are also Water Commission. commission can improve reporting, includ- components of the Hawai‘i Water Plan. A chart in the plan shows that ground- ing the use of the Civil Resource Violation Even so, Scheuer wanted the plans to in- water use is well below the sustainable yields System established for the Department of clude more direction from the commission. of each major island, but that conclusion is Land and Natural Resources, to which the The county water plans need to agree with based mainly on reported pumpage. And commission is administratively attached. the WRPP, and “it’s not enough for Water according to the plan, only 46.4 percent of Use and Development Plans to say DHHL well owners or operators comply with the v v v has this reservation,” he said, arguing that the requirement to report their monthly water plan must also explain how those reservations use. Of the 2,699 production wells statewide, Wet Water will be developed. the commission has water use reports for He said he understood that the com- only 1,251 of them. For DHHL mission was treating the WRPP as a living Still, county water departments are able n its deliberations on whether to approve document that could be amended at any time. to provide considerable information on Ithe WRPP update, Jonathan Scheuer, a However, he added, “we don’t have a sense groundwater use. Data on surface water, consultant for the Department of Hawaiian of what the triggers are,” which is worrisome however, is lacking, the plan states. Home Lands (DHHL), asked the commis- since it took ten years to update the plan. Commission deputy director Lenore Owners and/or operators of stream sion to ensure that the plan explain how Ohye suggested that it might be more ap- diversions are also required to report their the department’s water reservations will be propriate to include the kind of language monthly water use, but often don’t. The developed, since it is “the keystone docu- only surface water use data in the plan is Scheuer was asking for in the commission’s ment” in the Hawai‘i Water Plan. framework for updating the Hawai‘i Water a 12-month moving average for 2016 for Under state law, the DHHL is allowed each island, and it clearly does not reflect Plan, rather than in the WRPP. to reserve water in systems under the Water However it’s done, Scheuer told the com- what’s actually being diverted from streams. Commission’s jurisdiction to meet the needs Reported surface water use for Moloka‘i, mission, “Counties are subdivisions of state. of its beneficiaries. To date, the department Just as every other state agency is obligated for example, was zero. But according to a has reservations totaling nearly 30 million petition filed with the commission in July to help fulfill the Hawaiian Homes Com- gallons a day across more than two dozen mission Act, counties are as well.” hydrologic units statewide. The vast ma- “Getting from paper water to wet water Total # of # Production Island Production jority of those reservations were made in is part of the public trust. It’s about us set- Wells Wells Reporting September 2018. ting policies to enable that,” commissioner Kaua‘i 288 139 But DHHL officials and representatives, Kamana Beamer added. P lan including Scheuer, have complained in re- “That’s a big statement. Certainly big- O‘ahu 818 491 cent years that they have improperly faced ger than this meeting,” commission chair resistance from government agencies when Suzanne Case said. Some commissioners

P rote c tion Moloka‘i 89 40 trying to make use of its reservations. Rather also expressed skepticism about the duties Lana‘i 10 10 than treating the DHHL like any other being ascribed to them. Still, Case said the municipal customer and providing water Department of Land and Natural Resources, R esour c es Maui 567 240 through county water systems, some county which she also heads, is trying to do what Hawai‘i 927 331 water departments believe the DHHL it can to facilitate delivery of water to the should develop its own water. DHHL. “I do support that. … How it fits TOTAL 2,699 1,251 e: Water Water S our c e: The updated WRPP presented to the into the legal framework is a bigger discus- Status of Ground Water Use Reporting by Island for 2016 commission did state that existing and sion,” she said. —T.D.