East Maui Decision

TABLE OF CONTENTS
EXECUTIVE SUMMARY ........................................................................................................... i

I. FINDINGS OF FACT....................................................................................................... 2
A. Procedural History .................................................................................................. 2
B. The EMI-State Watershed Leases......................................................................... 13
C. The East Maui Streams ......................................................................................... 16
D. Evaluation of Instream and Noninstream Uses..................................................... 20
1. Instream uses............................................................................................. 20
a. Maintenance of fish and wildlife habitats..................................... 20
b. Outdoor recreational activities...................................................... 21
c. Maintenance of ecosystems such as estuaries, wetlands, and stream
vegetation...................................................................................... 22
d. Aesthetic values such as waterfalls and scenic waterways ........... 22
e. Navigation..................................................................................... 22
f. Instream hydropower generation .................................................. 23
g. Maintenance of water quality........................................................ 23
h. The conveyance of irrigation and domestic water supplies to
downstream points of diversion .................................................... 25
i. The protection of traditional and customary Hawaiian rights ...... 25
2. Noninstream uses ...................................................................................... 26
E. Individual Hydrologic Units ................................................................................. 27
1. Honopou (6034) ........................................................................................ 27
a. Physical features ........................................................................... 27
b. Diversions ..................................................................................... 28
c. Gaging stations.............................................................................. 28
d. Streamflow values......................................................................... 29
e. Instream values ............................................................................. 29
i. Maintenance of aquatic life and wildlife habitats ............. 29
ii. Outdoor recreational activities.......................................... 30
iii. Maintenance of ecosystems such as estuaries, wetlands, and
stream vegetation .............................................................. 30
iv. Aesthetic values ................................................................ 30
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v. Navigation......................................................................... 31
vi. Instream hydropower generation ...................................... 31
vii. Maintenance of water quality............................................ 31
viii. Conveyance of irrigation and domestic water supplies to
downstream points of diversion ........................................ 31
ix. Protection of traditional and customary Hawaiian rights . 31
e. Kuleana users ................................................................................ 32
2. Hanehoi (6037) ......................................................................................... 36
b. Diversions ..................................................................................... 36
v. Navigation......................................................................... 39
f. Kuleana users ................................................................................ 40
3. Waikamoi (6047) ...................................................................................... 42
b. Diversions ..................................................................................... 42
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v. Navigation......................................................................... 46
vi. lnstream hydropower generation....................................... 46
f. Kuleana users ................................................................................ 47
4. Puohokamoa (6048) .................................................................................. 48
b. Diversions ..................................................................................... 48
v. Navigation......................................................................... 51
f. Kuleana users ................................................................................ 52
5. Haʻipuaʻena (6049) ................................................................................... 52
b. Diversions ..................................................................................... 53
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v. Navigation......................................................................... 55
f. Kuleana users ................................................................................ 56
6. Punalau (6050) .......................................................................................... 56
b. Diversions ..................................................................................... 57
v. Navigation......................................................................... 59
f. Kuleana users ................................................................................ 61
7. Honomanū (6051) ..................................................................................... 61
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b. Diversions ..................................................................................... 61
v. Navigation......................................................................... 64
f. Kuleana users ................................................................................ 65
8. Nuaʻailua (6052) ....................................................................................... 65
b. Diversions ..................................................................................... 66
v. Navigation......................................................................... 68
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f. Kuleana users ................................................................................ 69
9. Piʻinaʻau (6053) ........................................................................................ 69
b. Diversions ..................................................................................... 70
v. Navigation......................................................................... 73
f. Kuleana users ................................................................................ 74
10. Ohia (6054) ............................................................................................... 77
b. Diversions ..................................................................................... 77
v. Navigation......................................................................... 79
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f. Kuleana users ................................................................................ 80
11. Waiokamilo (6055) ................................................................................... 80
b. Diversions ..................................................................................... 81
v. Navigation......................................................................... 83
f. Kuleana users ................................................................................ 84
12. Wailuanui (6056) ...................................................................................... 85
b. Diversions ..................................................................................... 86
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v. Navigation......................................................................... 89
f. Kuleana users ................................................................................ 90
13. West Wailuaiki (6057).............................................................................. 92
b. Diversions ..................................................................................... 93
v. Navigation......................................................................... 96
f. Kuleana users ................................................................................ 97
14. East Wailuaiki (6058) ............................................................................... 97
b. Diversions ..................................................................................... 98
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ii. Outdoor recreational activities........................................ 100
stream vegetation ............................................................ 100
iv. Aesthetic values .............................................................. 101
v. Navigation....................................................................... 101
vi. Instream hydropower generation .................................... 101
vii. Maintenance of water quality.......................................... 101
downstream points of diversion ...................................... 102
ix. Protection of traditional and customary Hawaiian rights 102
f. Kuleana users .............................................................................. 102
15. Kopiliula (6059)...................................................................................... 102
a. Physical features ......................................................................... 102
b. Diversions ................................................................................... 103
c. Gaging stations............................................................................ 103
d. Streamflow values....................................................................... 103
e. Instream values ........................................................................... 104
i. Maintenance of aquatic life and wildlife habitats ........... 104
v. Navigation....................................................................... 107
f. Kuleana users .............................................................................. 108
16. Waiohue (6060) ...................................................................................... 108
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b. Diversions ................................................................................... 108
v. Navigation....................................................................... 111
f. Kuleana users .............................................................................. 113
17. Paʻakea (6061) ........................................................................................ 113
b. Diversions ................................................................................... 113
v. Navigation....................................................................... 116
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f. Kuleana users .............................................................................. 117
18. Waiaaka (6062)....................................................................................... 117
b. Diversions ................................................................................... 117
v. Navigation....................................................................... 119
f. Kuleana users .............................................................................. 120
19. Kapaula (6063)........................................................................................ 120
b. Diversions ................................................................................... 120
v. Navigation....................................................................... 123
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f. Kuleana users .............................................................................. 124
20. Hanawī (6064) ........................................................................................ 124
b. Diversions ................................................................................... 124
v. Navigation....................................................................... 127
downstream points .......................................................... 128
f. Kuleana users .............................................................................. 128
21. Makapipi (6065)...................................................................................... 128
b. Diversions ................................................................................... 129
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v. Navigation....................................................................... 132
f. Kuleana users .............................................................................. 133
E. Stream Diversions............................................................................................... 134
1. EMI’s Ditch System................................................................................ 134
2. MDWS .................................................................................................... 140
F. Estimates of Stream Flows.................................................................................. 143
G. Habitat Restoration Potential .............................................................................. 146
1. The 2005 Habitat Study .......................................................................... 146
2. The 2009 Habitat Availability Study ...................................................... 149
b. Taro Water Requirements ........................................................... 158
c. Acreage in Taro........................................................................... 163
d. Revised IIFS to Meet Taro Water Needs .................................... 164
e. Habitat Improvement .................................................................. 165
H. Instream Uses...................................................................................................... 165
1. Protection of Traditional and Customary Native Hawaiian Rights ........ 169
a. Gathering and fishing.................................................................. 169
b. Exercise of Appurtenant Rights .................................................. 173
I. Noninstream Uses ............................................................................................... 178
1. HC&S...................................................................................................... 178
a. Agriculture Requirements........................................................... 178
b. Losses.......................................................................................... 189
i. EMI ................................................................................. 189
ii. HC&S.............................................................................. 191
c. Alternate Sources ........................................................................ 194
i. Ground Water.................................................................. 194
ii Additional Reservoirs ..................................................... 198
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iii. Recycled Wastewater...................................................... 200
iv. Maui Land and Pine ........................................................ 205
d. Economic Impact ........................................................................ 206
2. MDWS .................................................................................................... 210
a. Uses............................................................................................. 210
b. Losses.......................................................................................... 215
c. Alternate Sources ........................................................................ 216
d. Economic Impact ........................................................................ 218
J. Future Land Use of the Central Maui Fields ...................................................... 221
K. EMI’s Management of the Diversions and the Interim Restorations, and Any
Issues Concerning the Integrity of the EMI Ditch System ................................. 229
II. CONCLUSIONS OF LAW .......................................................................................... 232
A. Burden and Standard of Proof............................................................................. 232
B. Case Law............................................................................................................. 235
C. IIFS Criteria ........................................................................................................ 236
D. Instream Uses...................................................................................................... 238
1. Maintenance of Fish and Wildlife Habitats ............................................ 238
2. Outdoor recreational activities................................................................ 239
3. Maintenance of ecosystems such as estuaries, wetlands, and stream
vegetation................................................................................................ 240
4. Aesthetic values such as waterfalls and scenic waterways ..................... 240
5. Navigation............................................................................................... 240
6. Instream hydropower generation ............................................................ 240
7. Maintenance of water quality.................................................................. 240
8. The conveyance of irrigation and domestic water supplies to downstream
points of diversion................................................................................... 241
9. The protection of traditional and customary Hawaiian rights ................ 241
a. Traditional and customary Hawaiian rights ................................ 242
b. Appurtenant rights ...................................................................... 245
E. Noninstream Uses ............................................................................................... 246
1. HC&S...................................................................................................... 246
a. Agriculture .................................................................................. 246
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b. System losses .............................................................................. 249
c. Alternative sources...................................................................... 249
i. Ground water .................................................................. 249
ii. Additional reservoirs....................................................... 250
iii. Recycled wastewater....................................................... 251
iv. Maui Land and Pine ........................................................ 251
2. Maui Department of Water Supply (MDWS)......................................... 252
a. Municipal use.............................................................................. 252
b. System losses .............................................................................. 253
c. Alternative sources...................................................................... 254
3. Economic Impact .................................................................................... 255
a. HC&S.......................................................................................... 255
b. MDWS ........................................................................................ 257
F. Balance of Instream v. Noninstream Uses .......................................................... 259
1. Water for streams with high biological value ......................................... 259
2. Conveyance of water to kalo growing areas or for community use ....... 262
3. Water for streams that have barriers to biological or ecological
improvements.......................................................................................... 263
4. Noninstream use of water for municipal and agricultural uses............... 265
III. DECISION AND ORDER............................................................................................ 266
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EXECUTIVE SUMMARY
The Hawaii Water Commission and its staff thank all the stakeholders of our East Maui streams
and the communities served by them for their dedication and patience during this lengthy
contested case process. Our ruling initiates a new era of water allocation and use in East Maui,
after one hundred years of major stream diversions that supported plantation agriculture in
Maui’s central plains. Fortunately, the benefits of the long-term stewardship of the East Maui
forests provide enough water to allow the Commission to meet its primary trust responsibilities:
 maintenance of waters in their natural state;
 domestic water uses of the general public, particularly for drinking;
 native Hawaiian traditional and cultural gathering, including appurtenant rights; and
 reservations of water for the Department of Hawaiian Home Lands.
East Maui Forests and Streams
“Hahai no ka ua i ka ululāʻau” – Rains always follow the forest
Healthy streams are dependent on healthy forests. The East Maui watershed encompasses over
60,000 acres of predominately native forests, extending to 8,000 feet in elevation on the slopes of
Haleakalā. It was one of the first forest reserves established in Hawaiʻi over 100 years ago. The
forested watershed is currently managed by the East Maui Watershed partnership, a voluntary
coalition of public agencies, non-profit entities, and private landowners. Hawaiʻi’s most pristine
native forests and bird habitat can be found in its upper elevations. Annual rainfall exceeds over
300 inches a year in the eastern portion of the watershed.
There are also varied geologic and hydrologic features in the watershed which impact the flows
of the 27 streams in this contested case. 22 of these streams have been diverted for offstream
uses. Some East Maui streams are gaining streams with replenishment from springs and other
tributaries as they flow downhill. For these streams, there are opportunities to utilize water in
diversions at higher elevations without compromising down-stream benefits. Others are
considered losing streams. Flow diminishes in its movement downhill, especially during the
drier summer months. Many streams terminate into estuaries benefiting important near shore
marine resources. Others provide spectacular waterfalls, popular swimming holes and the
aesthetic beauty that enriches our existence on these islands.
Decision Making Rationale and Process
Our goal was a decision that could be realistically implemented, measured, and assessed on the
ground as well as communicated and understood by stakeholders. It was purposefully designed
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to increase the practical knowledge of stream flows and native habitat restoration. We believe
the allocations to be reasonable accommodations to current conditions, yet we are committed to
on-going monitoring in order to identify the need for adaptations to changing circumstances.
The Commission seeks to be transparent about our rationale and process for decision making in
order to facilitate evaluation of the Decision and Order (D&O) based on indicators of system
vibrancy, rather than siloed views of allocations for a single stream, use, or party.
Our decision establishes a quantity of water that must remain in each stream. It does not allocate
any additional water that can potentially be diverted offstream to support other activities as that
is under the purview of the Board of Land and Natural Resources (BLNR). The Commission
also identifies specific issues in this decision for the BLNR to consider in their future water lease
deliberations that will improve the long-term sustainability of East Maui streams.
The Commission first evaluated each stream individually, looking at their flow characteristics,
instream uses, habitat restoration potential for fish and other stream animals, recreation
opportunities, and scenic values. We then looked at all of the affected streams in an integrated
manner with consideration for the overall ecological ramifications of our decision. We used
those factors to align instream flow standards with our public trust responsibilities.
For over 100 years, the East Maui watershed forests have provided water for offstream uses that
meet our consumptive needs and enable economic opportunities. These benefits provide
additional impetus for sustainable management of the watershed. Therefore, the Commission
considered the economic impact of our decision upon offstream uses, with a specific focus on
supporting public uses such as drinking water, as well as diversified agriculture. We also
considered factors that contribute to the operational capacity of the existing ditch system to
deliver those offstream uses. Where necessary, changes were made to our original estimates of
instream flow standards to accommodate reasonable and beneficial offstream uses.
Hydrologic Issues
Estimating natural stream flow is not an exact science. This is especially true in Hawaiʻi with
our wet and dry seasons, large storm events, steep watersheds, varied underlying geologic
features, and a long history of stream diversions. While a small number of East Maui streams
have long term flow records, theoretical models of un-diverted total and base flows were used in
the majority of the streams.
The interim stream flow standard is a numeric flow rate, measured in cubic feet per second (cfs),
that must remain in the stream at a certain location. For purposes of this decision, the
Commission used a median base flow (BFQ50) or the amount of stream flow that can be expected
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to be found at least 50% of time. While the location of the flow standard can vary, it is normally
set at an accessible location on the lower elevation of the stream. Base flow is a smaller
component of the stream’s total flow, which includes water input from normal rainfall and storm
events. Large storm events provide important ecological functions in streams such as flushing
out invasive species and adding nutrients in the near shore marine environments. They also
provide opportunities for offstream uses if adequate storage capacity is available.
Current research indicates that the minimum viable flow necessary to provide suitable habitat
conditions for recruitment, growth, and reproduction of native stream animals is 64% of median
base flow, which is also known as H90. The Commission has estimated that the minimum viable
connectivity flow for the maintenance of a wetted pathway to facilitate the passage of organisms
along the stream path is 20% of median base flow (20% of BFQ50). In some cases, we recognize
that habitat conditions are so compromised that the wetted pathway will fall short in achieving
our goal of mauka (mountain) to makai (ocean) connection. Yet, we propose these allocations to
align with our commitment to balance and as a first step toward enhancing system health.
East Maui Irrigation Ditch system
The ditch system was constructed in phases, beginning in the 1870s and extending to the
completion of the current system in 1923. It remains a valuable asset that delivers offstream
public trust benefits such as drinking water, as well as irrigation water for reasonable and
beneficial uses. It is a complex system with 388 separate intakes, 24 miles of ditches, 50 miles
of tunnels, as well as numerous small dams, intakes, pipes, and flumes. With few exceptions, the
East Maui diversions historically captured all of the stream’s base flow, which represented the
ground-water contribution and an unknown percentage of the total flow. Many gaining streams
were diverted multiple times at different elevations. It is a gravity flow ditch system, driven by
the higher elevation diversions in the wetter, eastern portion of the watershed.
Our decision will necessitate significant reductions in offstream diversions. In many streams, we
are recommending no diversions of either base or total flow. While our order specifically
identifies the desired stream flow expected, we recognize that a universal remedy to modify or
remove diversions is not practical. At this time, the Commission’s overall guidance is to not
remove diversion structures if modification can achieve desired results. The reduction in
diversions does not by itself compromise the structural integrity of the ditch system so long as it
continues to be maintained as a single coordinated system. Reduced flows will increase the
amount of maintenance required of the open ditches in the system.
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Stream Classifications
The Commission classified streams in four broad categories that represent different priorities and
management strategies: kalo (taro) and community streams, habitat streams, public use streams,
and other streams.
Kalo and Community Streams - Hawaiʻiʻs Water Code recognizes kalo and other traditional
agriculture as an instream use. The Commission’s decision will return free flowing water, with
no upstream diversions, to all streams which have historically supported significant kalo
cultivation (Honopu, Huelo, Hanehoi, Pi‘ina‘au, Palauhulu, Ohia (Waianui), Waiokamilo,
Kualani, Wailuanui, Makapipi). The majority of these streams have been diverted for over 100
years. We believe we now have the opportunity to return that water to those streams and the
affected communities without undermining the economic benefits of offstream use.
This decision will align policy with current on-the-ground conditions. The Commission
acknowledges and commends A&B’s decision to return free flowing water to these kalo streams.
The Commission followed A&B’s decision by issuing an interim order to the same effect. This
decision will further solidify the commitment to these traditional kalo cultivating communities.
The Commission’s intent is to modify, and remove if necessary, all diversions in each kalo
stream and their tributaries to allow unrestricted total flow into the stream. The Commission set
the interim instream flow standard at a location below the kalo loʻi. These instream flow
standards serve as guidelines to monitor native habitat restoration. It is not the Commission’s
intent to regulate, at this time, where and how much water will be used for traditional kalo
agriculture or how the water will be apportioned amongst the various fields and farmers.
Our decision provides an opportunity to refine our knowledge of kalo water requirements and the
relationship between traditional uses and habitat viability. It also provides time and flexibility
for the leadership within the affected areas to develop community-based allocation and
management processes for the appropriate use of water from the kalo streams. At a later date,
the Commission is willing to consider permanent instream flow standards for these streams.
Our decision recognizes the importance of water from streams for traditional agriculture.
Inherent in that right is the responsibility to sustain the native fauna that live in that stream, as
well as to provide for other traditional and cultural gathering activities. While this approach is
not intended to automatically set precedents for other areas, it does provide a new model of water
use that integrates traditional culture with modern natural resource management.
Habitat Streams - Hawaii’s streams are home to a unique variety of native fish, shrimp,
mollusks and insects, most found nowhere else in the world. Their origin and link to the ocean
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are evident in their mainly diadromous life cycle, which means “two runs,” one to the ocean as
newly hatched larvae and subsequent return from the ocean to freshwater as juveniles. This
completes their life cycle and underscores the importance of maintaining the “mauka to makai”
connection. There is universal agreement that more water and better connectivity in streams is a
good thing for native habitat restoration.
The Commission’s decision identifies the following habitat streams (Honomanū, Waikamoi, East
Wailuaiki, Kopiliula, Punalau/Kōlea, Waiohue, West Wailuaiki) that will have limited or no
water diversions in order to foster improved habitat for native fish and other stream animals.
The Commission’s intent is to have all diversions within these habitat streams modified to ensure
connectivity to allow unrestricted movement of native species. The Commission set the interim
instream flow standard in all habitat streams at 64% of the median base flow (H90).
The two exceptions are Waiohue and West Wailuaiki streams which are to remain un-diverted
(total flow included) as habitat reference streams. We have much to learn about stream
restoration and the conditions needed for recruitment of native fauna into streams that have been
diverted for over one hundred years. These un-diverted habitat reference streams will provide
critical baseline data to validate and improve the theoretical restoration models that will inform
future decisions.
The Commission’s expectation is that restoring flows to streams that are spread out
geographically will: 1) provide greater protection against localized habitat disruptions; 2)
produce a wider benefit to estuarine and near-shore marine species; and 3) result in improved
comprehensive ecosystem function across the entire East Maui watershed.
Public Use Streams - Public use streams were specifically identified for offstream uses that
align with the Commission’s public trust responsibilities. The Commission’s decision has
retained the potential of continued use of a portion of Waikamoi, Puohokamoa, Ha‘ipua‘ena, and
Honomanū streams and the specific diversions that provide offstream water to the Upper and
Lower Kula Pipelines. Fortunately, many of the diversions that supply water for these offstream
purposes are from gaining streams where water can be diverted with minimum impact to down-
stream benefits. More timely and accurate reporting by Maui County should be required to
document the amounts of water diverted for these purposes. No diversions are allowed on
Honomanū stream below the Lower Kula Pipeline, in recognition of the stream’s contribution to
the estuarine resources in Honomanū Bay.
Other Streams to Support Diversified Agriculture - Much uncertainty exists as to the timing
and eventual replacement crops for the over 29,000 acres of former plantation sugar agriculture,
23,000 acres of which are designated Important Agricultural Lands (IAL). There is a lack of
detail from HC&S in the record about the type of diversified agriculture that will be cultivated on
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this acreage and the amount of water required to support it. There is also ambiguity about
alternative ground water availability for these lands.
Yet, we believe it to be reasonable and beneficial to use a portion of East Maui stream water for
the development of diversified agriculture on Maui’s central plains. Diversified agriculture has
and should continue to provide economic benefits and can now make a larger contribution to
Hawaii's food sustainability. We are also concerned that leaving these lands in an un-cultivated
state will increase wind-blown erosion that will damage Maui’s near shore marine environment,
air quality and tourism competitiveness. The Commission’s intent in this decision is to ensure
that a sufficient amount of offstream water is available to support the cultivation of diversified
agricultural crops on the lands designated as IAL in central Maui.
Our best estimate is that we have provided for about 90% of the irrigation needs for 23,000 acres
of IAL. We also want to catalyze the innovation, efficiency and investments needed to optimize
and enhance new sources of water needed for this diversified era of Maui agriculture. In
addition, although estimates of over 20 percent transmission system losses may comport with
current industry standards, they do not reflect best practices, will not serve the interests of future
generations and are not acceptable. Modern agribusiness investors should not expect to build a
new industry on the back of century-old infrastructure. Investment in ditch systems must be
made to avoid leakage and waste, install modern ground water storage technologies, optimize
use of non-potable water, and improve water capture and storage from storm events that increase
total flow availability.
The Commission’s decision will allow continued offstream use of portions of water from the
following habitat streams (Waikamoi, East Wailuaiki, Hanawī) as long as instream flow
standards are met; from the gaining streams of Hanawī and East Wailuaiki streams whose
diversions are located on the highest elevation of the Wailoa ditch; and from flows of
Wahinepe‘e, Puohokamoa, Ha‘ipua‘ena, Nua‘ailua, Pua‘aka‘a, Paakea, Waiaaka, Kapaula
streams in excess of instream flow standards set at the 20% of the median base flow provided to
sustain a wetted pathway within the stream bed. These streams were selected for more offstream
uses because of their lower potential for instream uses and native habitat restoration. The
Commission’s intent is to have all diversions within these streams modified to enhance prospects
for connectivity.
Future Allocation and Water Use Recommendations
The Commission recognizes that authorizing how much water will be allowed to be diverted
offstream once the instream flow standards are met is the purview of the Board of Land and
Natural Resources. However, the Commission would ask the Land Board to consider the
following issues for future water leases:
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 require improvements in the water delivery systems to minimize leakage and
waste, as well as to provide accurate and timely gaging and monitoring of all
offstream water uses;
 set aside a portion of water lease revenues to support the East Maui Watershed
Partnership, monitoring of streams flows, and native habitat restoration in East
Maui; and
Striking a Better Balance
Contested case hearings, while providing legal finality, are seldom the most effective process for
achieving the vision, objectives and benefits called for in the State Water Code. We hope this
Decision & Order is sufficiently balanced that it will resolve rather than extend already lengthy
legal proceedings. It is time to redirect energy and capital from argumentation to education,
from confrontation to cooperation, from stagnation to implementation, from depletion to
profusion.
“Mōhala i ka wai ka maka o ka pua” – Unfurled by the water are the faces of the flowers
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Findings of Fact,
Conclusions of Law, and Decision and Order
The Commission on Water Resource Management (“Commission”) makes the following
Findings of Fact (“FOF”), Conclusions of Law (“COL”), and Decision and Order (“D&O”),
based on the records maintained by the Commission in contested case number CCH-MA13-01,
Petition to Amend Interim Instream Flow Standards for Honopou, Hanehoi/Puolua (Huelo),
Waikamoi, Alo, Wahinepe‘e, Puohokamoa, Haʻipuaʻena, Punalau/Kōlea, Honomanū, Nuaʻailua,
Piinau, Palauhulu, Ohia (Waianu), Waiokamilo, Kualani (Hamau), Wailuanui, Waikani, West
Wailuaiki, East Wailuaiki, Kopiliula , Pua‘aka‘a, Waiohue, Paʻakea, Waiaaka, Kapaula, Hanawī,
and Makapipi Streams, and the witness testimonies and exhibits presented and accepted into
evidence.
If any statement denominated a COL is more properly considered a FOF, then it should
be treated as an FOF; and conversely, if any statement denominated as a FOF is more properly
considered a COL, then it should be treated as a COL.
Proposed FOF not incorporated in this D&O have been excluded because they may be
duplicative, not relevant, not material, taken out of context, contrary (in whole or in part) to the
found facts, an opinion (in whole or in part), contradicted by other evidence, or contrary to law.
Proposed FOF that have been incorporated may have minor modifications or corrections that do
not substantially alter the meaning of the original findings.
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I. FINDINGS OF FACT1
A. Procedural History
1. On May 24, 2001, the Native Hawaiian Legal Corporation (“NHLC”) filed 27
Petitions to Amend the IIFS for 27 East Maui streams on behalf of Nā Moku ʻAupuni ʻO Koolau
Hui, Beatrice Kepani Kekahuna, Marjorie Wallett, and Elizabeth Lehua Lapenia2 (collectively
“Nā Moku”). The petitions were accepted on July 13, 2001. (Exh. C-85, p. 2.)
2. On July 23, 2001, NHLC met to discuss the handling of the 27 petitions.
Agreement was reached that efforts would focus on Honopou, Hanehoi, Waiokamilo, Kualani,
Piʻinaʻau, Palauhulu, and Wailuanui streams (“Priority Streams”). (Exh. C-85, p. 2.)
3. Including the addition of Puolua (Huelo) Stream, the tributary of Hanehoi Stream,
these eight streams were eventually organized into five surface water hydrologic units: 1)
Honopou (6034) surface water hydrologic unit contains Honopou Stream; 2) Hanehoi (6037)
contains Hanehoi and Puolua (Huelo) Streams; 3) Pi‘ina‘au (6053) contains Piʻinaʻau and
1
References to the record are enclosed in parentheses, followed by a party’s proposed Finding
of Fact (“FOF”), in brackets, if accepted. FOF from the re-opened hearing are identified as
“on reopening”; e.g., “HC&S” versus “HC&S on reopening.” “Exh.” refers to exhibits
accompanying written or oral testimony, followed by the exhibit number and page or table
number, if necessary. Written testimony is referred to as follows: name of the witness, the
type of written testimony, and the page number or paragraph of that testimony. “WDT”
means written direct testimony or witness statement; and “WRT” means written responsive
testimony or the written rebuttal testimony to the written responsive testimony. Written
testimony from the reopened hearing is further identified by the date. Oral testimony is
referred to as follows: name of the witness, the date of the transcript (“Tr.”), and the page and
line numbers.
2
The Commission was notified by letter on May 10, 2007, that NHLC no longer represented
Ms. Lapenia.
2
Palauhulu Streams; 4) Waiokamilo (6055) contains Waiokamilo and Kualani Streams; and 5)
Wailuanui (6056) contains Wailuanui Stream.3 (Exh. C-85, pp. 1-2.)
4. From July 2001, there were meetings, site visits, and discussions among the
interested parties regarding the possibility of a collaborative effort to carry out stream studies for
the area. On March 20, 2002, the Commission approved a cooperative agreement between the
United States Geological Survey (“USGS”) and the Commission for a study on Water Resources
Investigations for Northeast Maui streams. The Study was to run from October 2, 2002 to
September 30, 2005. The study was completed in January 2006. (Id.)
5. On May 29, 2008, NHLC filed a complaint on behalf of Nā Moku, Beatrice
Kekahuna, Marjorie Wallet, and Maui Tomorrow Foundation, Inc. (“MTF”), alleging that
Hawaiian Commercial and Sugar Company (“HC&S”) was wasting water, based on testimony of
an HC&S employee who testified at the Board of Land and Natural Resources (“BLNR”)
contested case hearing on November 15, 2005. The waste complaint was resolved after staff
corresponded with the parties. (Staff Submittal to Clarify the Scope of the Proceedings for the
Contested Case Hearing on Remand from the Intermediate Court of Appeals No. CAAP-10-
0000161, August 20, 2014, p. 2.)
6. On August 18, 2008, HC&S filed a Motion to Consolidate Petitions to Amend
Interim Instream Flow Standards for East Maui Streams and Complaint Relating Thereto Filed
May 29, 2008 requesting that the Commission consolidate its consideration of all 27 previously
filed petitions into one and to consider amending the IIFS for all 27 streams in one unified
3
The petition to amend the IIFS for Waikani Waterfall (Stream) was consolidated with and
addressed as part of the petition to amend the IIFS for East and West Wailuanui Streams,
hereinafter referred to as “Wailuanui Stream.” (Staff submittal, September 24, 2008, p. 2.)
3
proceeding. There were briefs filed in support of the motion by various groups and individuals.
A memorandum in opposition was filed by Nā Moku. The Commission denied the Motion on
September 24, 2008. (Exh. C-88; Exh. C-89, pp. 3-9.)
September 25, 2008 Decision
7. On September 24, 2008, the Commission staff recommended amendment of the
IIFS for eight of the 10 Priority Streams. (Exh. C-85, pp. 60-62.)
8. On September 25, 2008, the Commission accepted staff’s recommendations
regarding amendments of the IIFS for the following hydrologic units: Honopou (6034), Hanehoi
(6037), Pi‘ina‘au (6053), Waiokamilo (6055), and Wailuanui (6056), Maui. (Exh. C-89)
9. In accepting staff’s recommendation, the Commission added the following three
amendments:
1) Moving forward on the staff’s recommendation is the first step in (an)

integrated approach to all 27 (twenty-seven) streams that are the subject of
these petitions.
2) Staff shall provide progress reports to the Commission at regularly

scheduled meetings during the course of the year.
3) In cases of return of water to losing streams, staff and all parties shall
monitor and report whether there are increases in either downstream flow
or groundwater in the vicinity.
(Exh. C-89, pp. 30-31.)
May 25, 2010 Decision
10. On December 16-17, 2009, the Commission met to consider staff’s
recommendations for the remaining 19 streams. Additional information was requested before the
Commission would make its decision, including a focus on seasonal IIFS-i.e., different IIFS for
wet versus dry seasons. (Exhs. C-90, C-106.)
4
11. On May 25, 2010, the Commission voted to amend the IIFS through a seasonal
approach to address habitat availability for native stream animals for six of the remaining 19
streams, with winter total restorative amounts of 9.45 mgd, and summer restoration reduced to
1.11 mgd. (Exh. C-91, pp. 47-52.)
12. At the end of the May 25, 2010 meeting, petitioners requested a contested case.
(Exh. C-91, p. 50.)
13. On June 3, 2010, Nā Moku filed a Petition for a Contested Case for “Petitioners’
right to sufficient stream flow to support the exercise of their traditional and customary native
Hawaiian rights to growing kalo and gathering in, among, and around East Maui streams and
estuaries and the exercise of other rights for religious, cultural and subsistence purposes.
Specifically, the rights of members to engage in such practices in, on, and near Waikamoi,
Puohokamoa, Haʻipuaʻena, Punalau/Kōlea, Honomanū, West Wailuaiki, East Wailuaiki,
Kopiliula and Pua‘aka‘a, Waiohue, Paʻakea, Kapaula, Hanawī streams from HRS § 1-1 and HRS
§ 7-1 and protected under HRS § 174-101.” (Exhs. C-92, p. 3.)
14. Petitioner’s request for a contested case identified five of the six streams that had
their IIFS amended, and eight of the 13 streams that had been left at their status quo IIFS in the
Commission’s May 25, 2010 decision. (Staff Submittal on the request for a contested case
hearing, October 18, 2010, p. 4, table 1.)
15. On June 3, 2010, County of Maui, Department of Water Supply (“MDWS”), also
filed a contested case petition, citing as its reasons that: 1) “any decision will directly affect
MDWS’s ability to provide water to homes, farms, schools, hospitals, churches, and businesses
in Upcountry Maui, as MDWS’s Upcountry System relies heavily on surface water”; and 2)
“MDWS is the public water supplier for the County. MDWS is in the best position to represent
5
the public’s interest in continued use of these resources for the Upcountry Maui public water
supply.” (Application to be a Party in a Contested Case Hearing Before the Commission on
Water Resource Management, June 3, 2010, p. 2.)
16. On October 18, 2010, the Commission voted to deny both of the petitions filed by
Nā Moku and the County of Maui. (Exh. C-93, pp. 3-5.)
17. On November 17, 2010, Nā Moku filed a timely notice of appeal, contending that
the Commission erred in: 1) concluding that Nā Moku had no right to a contested case hearing;
and 2) reaching its underlying decision regarding IIFS amendment for the nineteen streams at
issue. (In Re Petition to Amend Interim Instream Flow Standardsfor Waikamoi, Puohokamoa,
Haʻipuaʻena, Punalau/Kōlea, Honomanū, West Wailuaiki, East Wailuaiki, Kopiliula , Pua‘aka‘a,
Waiohue, Paʻakea, Kapaula and Hanawī Streams, Hawai‘i Intermediate Court of Appeals,
CAAP-10-0000161, November 30, 2012, pp. 2-3.)
18. On November 30, 2012, the Intermediate Court of Appeals vacated the
Commission’s October 18, 2010 denial of Nā Moku’s Petition for Hearing and remanded the
matter to the Commission with instructions to grant Nā Moku’s Petition for Hearing and to
conduct a contested case hearing pursuant to Hawaii Revised Statutes (HRS) Chapter 91 and in
accordance with state law. In its ruling, the Intermediate Court of Appeals concluded that “(t)he
May 25, 2010 meeting, at which the Commission reached an IIFS determination for the nineteen
streams, did not comply with the adjudicatory procedures of the Hawaiʻi Administrative
Procedures Act (HAPA). Among other things, the Commission did not produce a written
decision accompanied by findings of fact and conclusions of law. We consequently decline Nā
Moku’s invitation to address the merits of whether the Commission erred in reaching its
determination on the petitions to amend the IIFS for the nineteen streams, as argued in the
6
parties’ briefs. This matter is to be properly presented, argued, and decided pursuant to an HRS
chapter 91 contested case hearing conducted by the Commission, the body statutorily
empowered to make this determination.” (Id., pp. 7-8.)
19. On January 29, 2014, Lawrence Miike4 was appointed Hearings Officer:
a. On March 4, 2014, a prehearing conference was held to establish

timetables for the contested case proceedings (Minute Order #1, February
25, 2014), and
b. on April 21, 2014, Nā Moku, MDWS, Alexander & Baldwin, Inc./EMI

(“HC&S”),5 Hawaii Farm Bureau Federation, and MTF, were granted
standing. (Minute Order #2, April 21, 2014.)
20. On May 13, 2014, MTF withdrew as a party to the contested case, without
prejudice to the ability of its supporters, Neola Caveny and Ernest Shupp, to continue as parties,
but on June 6, 2014, MTF requested that it be reinstated as a party to the contested case, and the
request was granted on June 9, 2014. (Letter of May 13, 2014, from Isaac Hall, attorney for Maui
Tomorrow Foundation, Inc.; Minute Order #6, May 28, 2014; Minute Order #8, June 9, 2014.)
21. On June 30, 2014, a hearing was held to address the Hearings Officer’s proposal
that the contested case must address all 27 streams in an integrative approach and not just the
thirteen streams named in the request for the contested case. (Minute Order #7, May 30, 2014;
Transcript of due process hearing, June 30, 2014.)
4
Dr. Miike was a member of the Commission from 1994 to 1998 and from 2004 to 2012. He
was a member of the Commission at the time of its September 24, 2008 decision on the first
eight streams, the May 25, 2010 decision on the remaining 19 streams, and the October 18,
2010 decision to deny standing to Nā Moku. Dr. Miike voted to approve the staff
recommendation (with amendments) on the first eight streams, dissented from the majority’s
approval of the remaining 19 streams, and did not attend the meeting where the Commission
denied standing to Nā Moku.
5
Alexander and Baldwin, Inc./EMI was named as the party granted standing.
7
22. The Hearings Officer ruled that all 27 streams would be addressed in the
contested case, because:
a. the Commission’s decision on the first eight streams amended the staff
recommendation to state that “(m)oving forward on the staff’s
recommendation is the first step in (an) integrated approach to all 27
(twenty-seven) streams that are the subject of these petitions,” FOF 9,
supra;
b. the Intermediate Court of Appeals had ruled that “(t)he May 25, 2010
meeting, at which the Commission reached an IIFS determination for the
nineteen streams, did not comply with the adjudicatory procedures of
HAPA (Hawaiʻi Administrative Procedures Act). Among other things, the
Commission did not produce a written decision accompanied by findings
of fact and conclusions of law. We consequently decline Nā Moku’s
invitation to address the merits of whether the Commission erred in
reaching its determination on the petitions to amend the IIFS for the
nineteen streams, as argued in the parties’ briefs. This matter is to be
properly presented, argued, and decided pursuant to an HRS chapter 91
contested case hearing conducted by the Commission, the body statutorily
empowered to make this determination,” FOF 18, supra;
c. neither the Commission’s decision on the first eight streams nor its
decision on the remaining 19 streams met the legal requirements for
establishing IIFS, as those decisions did not “weigh the importance of the
present or potential instream values with the importance of the present or
potential uses of water for noninstream purposes, including the economic
impact of restricting such uses,” HRS § 174C-71(2)(D); and
d. the Commission cannot evaluate the cumulative impact of existing and

proposed diversions on trust purposes without assessing the impacts of
diversions on all 27 streams.
(Transcript of due process hearing, June 30, 2013, pp. 28-41.)
23. On July 16, 2014, the Commission met to discuss a Proposed Procedural Order to
conduct a Contested Case Hearing for all twenty-seven (27) streams, and on August 20, 2014,
the Commission voted to authorize, order, delegate, and direct the Hearings Officer to conduct a
Contested Case Hearing on Petitions to Amend the Interim Instream Flow Standards for all
twenty seven (27) Petitions and streams filed by NHLC. (Proposed Procedural Order to clarify
8
the scope of the proceeding and Contested Case Hearing, July 16, 2014; Minutes of the
Commission Meeting of August 20, 2014, pp. 9-10.)
24. On September 8, 2014, a notice was published, announcing that the Contested
Case Hearing would address all twenty-seven (27) petitions. (Maui News, September 8, 2014.)
25. On November 13, 2014, a standing hearing was held to address three applications
to be additional parties in the Contested Case Hearing. Jeffrey Paisner was granted standing.
John Blumer-Buell and Nikhilananda were denied standing but could testify at the hearing as the
Hearings Officer’s witness. (Minute Order # 10, October 28, 2014; Minute Order # 11,
December 4, 2014.)
26. On January 7, 2015, a minute order was issued, standardizing the captions for the
contested case hearing, because differing versions had been used by the parties and the
Commission staff. (Minute Order # 13, January 7, 2015.)
27. Between March 2, 2015 and April 2, 2015, 15 days of hearings were held, during
which 36 witnesses testified and an additional 16 witness statements and approximately 550
exhibits were introduced into evidence by Nā Moku, MTF, HC&S, MDWS, Jeffrey Paisner and
the Hearings Officer.
28. On October 2, 2015, Nā Moku and MTF jointly, HC&S, and MDWS submitted
their FOF, COL, and D&O to the hearings officer. Jeffrey Paisner and Hawaii Farm Bureau
Federation did not submit any FOF, COL, and D&O.
29. On January 6, 2016, A&B announced that HC&S was terminating its sugarcane
cultivation and was transitioning to a diversified farm model. The short-term impact would be a
significant reduction of its use of East Maui surface water, and for the long-term, its water needs
would increase to support diversified agriculture, though most likely less than what it consumes
9
currently. (Exh. C-153; Minute Order # 18, March 10, 2016.) [HC&S on reopening, FOF 45;
MTF on reopening, FOF 4, 107.]
30. On January 15, 2016, the hearings officer submitted his Proposed FOF, COL, and
D&O (“1/15/16 Proposed Decision”) to the Commission and the parties, and on February 29,
2016, the parties submitted their exceptions to the Hearings Officer’s Proposed Decision.
(Minute Order # 16, January 15, 2016.) [HC&S on reopening, FOF 46-47.]
31. On March 10, 2016, CWRM directed the Hearings Officer to “reopen the hearing
to address A&B’s decision of January 6, 2016 to change HC&S’s business operations from
farming sugar to a diversified agricultural model.” (Minute Order # 18, March 10, 2016.) [HC&S
on reopening, FOF 47.]
32. On April 1, 2016, the Hearings Officer recommended that the scope of the re-
opened hearing include the following areas:
a. HC&S/A&B’s current and future use of surface waters and the impact on
the groundwater sources for its cental Maui fields of HC&S’s cessation of
sugar operations;
b. the impact of HC&S’s cessation of sugar operations on MDWS’s use of

surface water;
c. Maui County’s position on the future use of the central Maui fields; and
d. how EMI is managing the decrease in diversions, how it would manage

the interim restorations, and any issues concerning the integrity of the EMI
ditch system with the current and any future changes in offstream
diversions.
(Minute Order # 19, April 1, 2016.) [HC&S on reopening, FOF 48.]
33. On April 20, 2016, A&B announced that it had decided to fully and permanently
restore the East Maui streams identified in 2001 by CWRM and NHLC on behalf of its clients.
On April 22, 2016, A&B sent a letter to CWRM confirming this intent. The streams are:
10
Honopou, Hanehoi (including Puolua), Waiokamilo, Kualani,6 Piʻinaʻau, Palauhulu, and East
and West Wailuanui. (Rick Volner (“Volner”), WDT, 10/17/16, ¶ 8; Exh. C-154.) [HC&S on
reopening, FOF 49; MTF on reopening, FOF 45; Nā Moku on reopening, FOF 7.]
34. On May 31, 2016, the Hearings Officer issued an “Amended Recommendation Re
Interim Restoration of Stream Flows,” adopting A&B/EMI’s proposed phasing of the streams for
full and permanent restoration and leaving in place his original interim restoration
recommendation of April 1, 2016 of 18.00 – 18.60 mgd of the approximately 43.82 mgd of
ground-water (base flows, BFQ50) Commission staff had estimated that EMI had diverted
historically. [Nā Moku on reopening, FOF 6, 8.]
35. On July 18, 2016, the Commission issued an “Order Re Interim Restoration of
Stream Flow,” affirming the Hearings Officer’s amended interim recommendation and further
ordered that the ten (10) streams A&B/EMI had stated were undiverted remain that way until
further notice: Waiokamilo, Wailuanui (East and West), Makapipi, Hanawī, Waiohue, East
Wailuaiki, West Wailuaiki, Waikamoi, Kopiliula, and Pua‘aka‘a. [Nā Moku on reopening, FOF
9.]
36. On August 18, 2016, CWRM approved the listing of the issues in Minute Order
19, supra, FOF 32. (“Order Regarding the Scope of the Re-opened Hearing to Address the
Cessation of Sugar Operations by HC&S.”) [HC&S on reopening, FOF 50; MTF on reopening,
FOF 12; Nā Moku on reopening, FOF 10.]
6
Although this stream continues to be referred to as “Kualani,” it is in fact the easternmost
tributary of Waiokamilo Stream and now known as “East Waiokamilo Stream.” Kualani
Stream is below the EMI ditch system and has never been diverted, infra, FOF 62, 184, 186
11
37. On December 9, 2016, the Board of Land and Natural Resources (“BLNR”)
issued a temporary, one-year holdover of A&B/EMI’s East Maui water licenses subject to the
Commission’s Interim Restoration Order and to EMI ceasing all diversions of Honomanū Stream
for the duration of the one-year holdover period (through December 2017). (Tr., 2/9/17, p. 539, l.
6 to p. 540, l. 2.) [Nā Moku on reopening, FOF 11.]
38. The re-opened evidentiary hearing was conducted on February, 6, 8, and 9, 2017.
The parties were to file their Proposed FOF, COL and D&O on April 7, 2017, but on April 5,
2017, MDWS requested that the proceedings be reopened. On April 6, 2017, the Hearings
Officer suspended the deadline for submissions to provide MDWS the opportunity to petition the
Commission to again re-open the hearings. MDWS filed its Motion to Reopen Evidence on
April 13, 2017, and MTF and Nā Moku filed their Memoranda in Opposition on April 20, 2017.
[HC&S on reopening, FOF 51; MTF on reopening, FOF 13-17; Nā Moku on reopening, FOF
12.]
39. The Hearings Officer circulated a draft recommendation for denial of the Motion
to Reopen Evidence for consideration by the parties in a telephone conference on May 4, 2017.
On May 10, 2017, he submitted his recommendation for denial of the Motion, and on May 31,
2017, the Commission denied the Motion. (“Order Denying County of Maui, Department of
Water Supply’s Motion to Reopen Evidence Dated April 13, 2017,” May 31, 2017.) [MTF on
reopening, FOF 18-20.]
40. Proposed FOF, COL, and D&O were to be filed by March 31, 2017, which date
was amended two times with the final deadline being June 7, 2017. Objections were to be filed
by April 7, 2017, which date was similarly amended two times with the final deadline being June
19, 2017. (Minute Orders 24, 25, and 27.) [MTF on reopening, FOF 21.]
12
41. On July 28, 2017, the Hearings Officer submitted his Proposed FOF, COL, and
D&O to the Commission and the Parties.
42. On August 2, 2017, the Hearings Officer submitted his Amended Proposed FOF,
COL and D&O to the Commission and the Parties.
B. The EMI-State Watershed Leases
43. “Since the 1930s, the Territory and then the State issued water permits to
Alexander & Baldwin, Inc., Hawaiian Commercial & Sugar Co, and East Maui Irrigation
Company, Ltd. (EMI) for the diversion of water from streams in East Maui. The collection
system consist(ed) of 388 separate intakes, 24 miles of ditches, and fifty miles of tunnels, as well
as numerous small dams, intakes, pipes, and flumes (citation omitted). With few exceptions, the
diversions capture all of the base flow, which represents the ground-water contribution to total
stream flow, and an unknown percentage of total stream flow7 at each crossing...The source of
diverted water is a watershed with an area of about 56,000 acres, about two-thirds of which is
owned by the State (citation omitted) and managed by the State Department of Land and Natural
Resources.” (Gingerich, S.B., 2005, “Median and Low-Flow Characteristics for Streams under
Natural and Diverted Conditions, Northeast Maui, Hawaii: Honolulu, HI, U.S. Geological
Survey, Scientific Investigation Report 2004-5262, 72 pp., at p. 1, referenced by Stephen B.
Gingerich, Transcript, March 3, 2015, p. 49 (hereinafter, “2005 Flow Study”).)
44. The leases cover four watersheds of approximately 50,000 acres, of which 33,000
acres are owned by the State, and 17,000 acres are owned by EMI. (Garrett Hew (“Hew”), WDT,
12/30/14, ¶ 4.)
7
Stream flow consists of ground water, plus freshet (“normal” rainfall) and storm waters.
13
45. EMI pays the State $160,000 a year for the right to divert stream waters from the
approximately 33,000 acres it leases. (Hew, Tr., March 17, 2015, pp. 198-200.)
46. The lease between the State and EMI traces back to a September 13, 1876
agreement. Construction of the ditch system began in the 1870's. (Exh. C-2; Hew, WDT,
12/30/14, ¶ 5.)
47. Since 1938, the leases have been governed by an agreement dated March 18, 1938
between the Territory of Hawaii and EMI. The last long-term licenses were issued in the 1950s
and 1960s, and following their expiration, annual revocable licenses were issued by the Board of
Land and Natural Resources (“BLNR”). The licenses are currently in holdover status due to the
contested case hearing that is pending before the BLNR. (Exhs. C-3 to C-11; Hew, WDT,
12/30/14, ¶¶ 6, 8-11.)
48. Prior to 1985-86, the State contracted with the U.S. Geological Survey (“USGS.”)
to operate gaging stations in various locations in the Ditch system to measure the volume of
water collected in each license area from State lands. Beginning with fiscal year 1985-1986, the
State no longer contracted with USGS for this service, and EMI took over the operation of the
ditch gages and reports the license yields directly to the State. Since 1988 EMI reports a single
annual yield to the State, aggregating the readings at the western end of the license areas at
Honopou Stream and applying a single factor of 70 percent, based on a comparison of average
yields reported by USGS in prior years and a series of studies from 1949 to 1985. (Hew, WDT,
12/30/14, ¶ 12, 13, 15; Exh. C-16.)
49. From east to west, the watersheds are:
a. Nahiku: between the Nahiku Homesteads and the easterly boundary of the
Keanae license area. (Exh. C-10, p. 2.)
14
b. Keanae: between and including the easterly watershed of Waiaaka Stream
and the westerly watershed of Piʻinaʻau Stream. (Exh. C-8, p. 2.)
c. Honomanū: between and including Nuaʻailua and Haipuena Streams and

tributaries. (Exh. C-6, ¶ 4.)
d. Huelo: between and including Puohokamoa and Honopou Streams and

their tributaries. (Exh. C-4, p. 2.)
50. EMI’s meters measure ditch flows at the boundary of each license area and at its
gauging station at Maliko Gulch. EMI contracts with USGS to maintain its gauging stations at
the Honopou boundary to measure the aggregate amount of water diverted out of the four East
Maui license areas at each of the following ditches: Wailoa, New Hāmākua, Lowrie, and Ha‘iku.
(Hew, Tr., 2/6/17, p. 98, ll. 6-16; p. 149, ll. 11-15, p. 151, ll. 17-18.) [Nā Moku on reopening,
FOF 31-32.]
51. License-area yields from 1985-1988 were as follows:
% of total % from government lands % from private lands

Nāhiku: 12.9 95 5
Ke‘anae 25.7 79 21
Honomanū 19.8 47 53
Huelo 41.7 64 36
100.1 (from rounding)
(Exh. C-12, at 5; C-13, at 2; C-14, at 2.) [Nā Moku on reopening, FOF 38.]
52. From east to west, the State leases begin at Nahiku and end at Honopou Stream,
and the East Maui Ditch System continues to collect stream waters between Honopou Stream
and Maliko Gulch on EMI's and other private landowners' lands. These streams contribute about
7 percent of total ditch flows, with the lease lands contributing 93 percent, infra, FOF 445. The
sugar cane fields of HC&S begin west of Maliko Gulch. (See Exh. C-1, attached.)
15
53. Streams in the lands leased from the State not only traverse EMI lands on their
way to the ocean, but also traverse other private landowners' lands, particularly as the streams
near the ocean. (See Exh. C-1, attached.)
54. The 1876 agreement between the State and EMI recognized the existence of other
property owners, stating that “existing rights or present tenants of said lands or occupiers along
said streams shall in no wise be lessened or affected injuriously by reason of anything
hereinbefore granted or covenanted.” (Exhibit C-2, pp. 2-3; Hew, Tr., March 17, 2015, pp. 161-
169.)
55. Each of the four leases continues to recognize the rights of other property owners
“for domestic purposes and the irrigation of kuleanas entitled to the same.” (Exh. C-4, ¶ 6; Exh.
C-6, ¶ 6; Exh. C-8, p. 2; Exh. C-10, p. 2.)
C. The East Maui Streams
56. There are 24, not 27, streams that are the subject of this contested case:
a. Waikani is not a stream but a waterfall on Wailuanui Stream. (Hew, WDT,

12/30/14, ¶ 36.)
b. Alo is a tributary of Waikamoi Stream. (See Exh. C-1, attached.)
c. Pua‘aka‘a is a tributary of Kopiliula Stream, infra, FOF 575;
d. Piʻinaʻau and Palauhulu are separate streams but join together before
reaching the ocean, infra, FOF 265.
57. EMI and MDWS have diverted 22 of these 24 streams. Kualani (also known as
“Hamau”) and Ohia (also known as “Waianu”) Streams are both below the EMI ditch system
and have never been diverted. (Hew, WDT, 12/30/14, ¶ 36.)
16
58. EMI's and MDWS's ditches divert more than these 22 streams. (See Exhs. C-1
and C-33, attached.) From east to west, the streams that are in each of the state watershed lease
areas are as follows, with the streams that are the subject of this contested case underlined:
a) Nahiku lease area:
1. Makapipi Stream
2. Hanawī Stream
3. Kapaula Stream
b) Keanae lease area:
4. Waiaaka Stream
5. Paʻakea Stream
6. Waiohue Stream
7. Kopiliula Stream (Pua‘aka‘a tributary8)
8. East Wailuaiki Stream
9. West Wailuaiki Stream
10. Wailuanui Stream (Waikani waterfall, supra, FOF 56)
11. Kualani (or Hamau) Stream (below ditch system, supra, FOF 57)
12. Waiokamilo Stream
13. Ohia (or Waianu) Stream (below ditch system, supra, FOF 57)
14. Palauhulu Stream (Hauoli Wahine and Kano tributaries)
15. Piʻinaʻau Stream
c) Honomanū lease area:
16. Nuaʻailua Stream
8
Puakaa Stream is listed as an independent stream in the Petition, but on the map (see Exh. C-
1, attached), it is a tributary of Kopiliula Stream.
17
17. Honomanū Stream
18. Punalau Stream (Kōlea and Ulunui tributaries)
19. Haʻipuaʻena Stream
d) Huelo lease area:
20. Puohokamoa Stream
21. Wahinepe‘e Stream
22. Waikamoi Stream (Alo tributary)
23. Kōlea Stream
24. Punaluu Stream
25. Kaaiea Stream
26. Oopuola Stream (Makanali tributary)
27. Puehu Stream
28. Nailiilihaele Stream
29. Kailua Stream
30. Hanahana Stream (Ohanui tributary)
31. Hoalua Stream
32. Hanehoi Stream (Huelo (also known as Puolua) tributary)
33. Waipio Stream
34. Mokupapa Stream
35. Hoolawa Stream (Hoolawa ili and Hoolawa nui tributaries)
36. Honopou Stream (Puniawa tributary)
59. Additional streams between Honopou Stream and Maliko Gulch (See Exhs. C-1
and C-33, attached) include:
37. Kapalaalaea Stream (Piiloʻi tributary)
18
38. Halehaku Stream (Waihee, Makaa, Kaulu, Palama, Opana
tributaries)
39. Keali Stream
40. Manawaiianu Stream
41. Opaepilau Gulch (labeled as a stream in Exh. C-33)
42. Lilikoi Gulch (labeled as a stream in Exh. C-33)
60. Exhibit C-33 needs further explanation in that:
a) In the Nahiku lease area, Kapaula Stream is not depicted.
b) In the Keanae lease area, Paʻakea, Waiohue, East Wailuaiki, West

Wailuaiki, Wailuanui, Waiokamilo, and Palauhulu Streams are not
depicted. Of these, EMI has stated that it no longer diverts Waiokamilo.
(Hew, Tr., March 17, 2015, pp. 125, 128.)
c) In the Honomanū lease area, Kōlea Stream is a branch of Punalau Stream,

supra, FOF 58 (stream # 18).
d) In the Huelo lease area:

1. Alo Stream is a tributary of Waikamoi Stream.
2. Ohanui Stream is a tributary of Hanahana Stream.
3. Huelo (Puolua) Stream is a tributary of Hanehoi Stream.
4. Kōlea Stream is not depicted, but there is a Kōlea reservoir.
5. Wahinepe‘e, Punaluu, Puehu, and Mokupapa Streams are not

depicted.
6. Hoolawa ili and Hoolawa nui are tributaries of Hoolawa Stream.
e) In the area between Honopou Stream and Maliko Gulch:

1. There is no Kapalaalaea Stream, but an unidentified stream flows
into Kapalaalaea Reservoir.
2. Opana Stream is one of the tributaries of Halehaku Stream.
19
3. EMI states that Opana, Opaepilau, and Lilikoi Streams are not
diverted at the Wailoa Ditch (but are diverted at the lower ditches).
(Hew, Tr., March 18, 2015, p. 176.)
4. Keali and Manawaiianu Streams are below the Wailoa Ditch and
not depicted, see Exh. C-1, attached.
D. Evaluation of Instream and Noninstream Uses
61. Instream Flow Standard Assessment Reports (IFSARs) are a compilation of the
hydrology, instream uses, and noninstream uses related to a specific stream and its respective
surface water hydrologic unit. The purpose of an IFSAR is to present the best available
information for a given hydrologic unit. That information can then be used to determine IIFS
recommendations. (IFSARs, § 1.0. p. 4.)
1. Instream uses
a. Maintenance of fish and wildlife habitats
62. When setting IIFS, the information that is considered in connection with the
instream use of maintenance of fish and wildlife habitats is the presence of stream
channelizations, native vertebrates, invertebrates, invasive species, and the recruitment,
abundance, diversity, and distribution of species. (Exh. C-100, p. 8.)
63. After the Petitions were filed, the Division of Aquatic Resources and Bishop
Museum, at the request of the Commission, undertook to survey and account for aquatic
resources that have been observed in certain streams in east Maui. The streams studied include:
Waikamoi, Puohokamoa, Haʻipuaʻena, Punalau, Honomanū, Nuaʻailua, Ohia, West Wailuaiki,
East Wailuaiki, Kopiliula , Waiohue, Paʻakea, Kapaula, Hanawī, and Makapipi. (Hawaii DAR
2009 Report on East Maui Streams, Prepared for the State of Hawaii, Commission on Water
Resources Management, see e.g. http://files.hawaii.gov/dlnr/cwrm/activity/iifsmaui1/dar-
6047.pdf.)
20
64. These reports were incorporated into the IFSAR for the hydrologic unit which
contained the studied stream. (See e.g. Waikamoi IFSAR, Bibliography, p. 170.)
65. DAR supports the following positions:
The removal of stream diversions and the complete

restoration of stream flow would be the best
possible condition for native aquatic animals. DAR
understands that management of the resource is a
balance between the needs of the animals and the
needs of people thus supports some use of water
from East Maui Streams.
The prioritization of the East Maui Streams is based

upon the “biggest bank for the buck” concept,
where priority is placed on streams with the greatest
potential to increase suitable habitat for native
species.
The restoration of suitable flows to a single stream

is more appropriate than the return of inadequate
flow to multiple streams. DAR supports the trade-
offs on the restoration of a smaller number of
streams with sufficient water over the return of
insufficient water (for example at H50 or H70 levels)
to a larger number of streams.
(Exh. E-72, p. 3.)
b. Outdoor recreational activities
instream use of outdoor recreation activities is the presence of opportunities for swimming,
nature study, fishing, boating, and parks. (Exh. C-100, p. 8.)
67. Streams are often utilized for water-based activities such as boating, fishing, and
swimming, while offering added value to land-based activities such as camping, hiking, and
hunting. (See e.g. Honopou IFSAR § 5.0, p. 41.)
21
c. Maintenance of ecosystems such as estuaries, wetlands, and
stream vegetation
maintenance of ecosystems such as estuaries, wetlands, and stream vegetation is the presence or
proximity of estuaries, wetlands, nearshore waters, Natural Area Reserves, National Parks, and
other protected areas. (Exh. C-100, p. 8.)
69. An ecosystem can be generally defined as the complex interrelationships of living
(biotic) organisms and nonliving (abiotic) environmental components functioning as a particular
ecological unit. Depending upon consideration of scale, there may be a number of ecosystem
types that occur along a given stream such as estuaries, wetlands, and stream vegetation. (See
e.g. Honopou IFSAR § 6.0, p. 45.)
d. Aesthetic values such as waterfalls and scenic waterways
70. When setting IIFS, the information that is considered in connection with aesthetic
values such as waterfalls and scenic waterways is the presence of scenic views, waterfalls and
whether there is tourism in the area. (Exh. C-100, p. 8.)
71. Aesthetics is a multi-sensory experience related to an individual’s perception of
beauty. As a subjective value, aesthetics cannot be quantitatively determined. Elements, such as
waterfalls and cascading plunge pools that appeal to an observer’s visual and auditory senses.
(See e.g. Honopou IFSAR § 7.0, p. 52.)
e. Navigation
72. When setting IIFS, the information that is considered in connection with
navigation is whether there are boating opportunities. (Exh. C-100, p. 8.)
22
73. Navigational water use is largely defined as water utilized for commercial, and
sometimes recreational, transportation. Hawaii streams are generally too short and steep to
support navigable uses. (See e.g. Honopou IFSAR § 8.0, p. 54.)
f. Instream hydropower generation
74. When setting IIFS, the information that is considered in connection with instream
hydropower generation is whether there is the present of potential use of the stream for
hydropower. (Exh. C-100, p. 8.)
75. The generation of hydropower is typically accomplished through instream dams
and power generators, however, the relatively short lengths and flashy nature of Hawaii’s
streams often require water to be diverted to offstream power generators. (See e.g. Honopou
IFSAR § 9.0, p. 55.)
g. Maintenance of water quality
76. When setting IIFS, the information that is considered in connection with
maintenance of water quality is water quality standards, 303(d) impaired waters, total maximum
daily loads, and adjacent land use. (Exh. C-100, p. 8.)
77. The maintenance of water quality is important due to its direct impact upon the
maintenance of other instream uses such as fish and wildlife habitat, outdoor recreation,
ecosystem, aesthetics, and traditional and customary Hawaiian rights. There are several factors
that affect a stream’s water quality, including physical, chemical and biological attributes. The
State of Hawaii Department of Health is responsible for water quality management statewide.
(See e.g. Honopou IFSAR § 10.0, p. 57.)
78. Fresh waters are classified for regulatory purposes, according to the adjacent
land’s conservation zoning. There are two classes for inland freshwaters. Class 1 inland waters
23
are protected to remain in their natural state as nearly as possible with an absolute minimum of
pollution from any human-caused source. Class 2 inland waters are protected for uses such as
recreational purposes, support of aquatic life, and agricultural water supplies. (See e.g. Honopou
IFSAR § 10.0, pp. 57-58.)
79. Class 1 waters are further separated into Classes 1a and 1b. (See e.g. Honopou
IFSAR § 10.0, p. 58.)
80. Class 1a waters are protected for the following uses: scientific and educational
purposes, protection of native breeding stock, baseline references from which human-caused
changes can be measured, compatible recreation, aesthetic enjoyment, and other non-degrading
uses which are compatible with the protection of ecosystems associated with waters of this class.
Streams that run through natural reserves, preserves, sanctuaries, refuges, national and state
parks, and state or federal fish and wildlife refuges are Class 1a. (See e.g. Honopou IFSAR §
10.0, p. 58.)
81. Streams adjacent to the most environmentally sensitive conservation subzone,
“protective” are Class 1b and are protected for the same uses as Class 1a waters, with the
addition of domestic water supplies, food processing, and the support and propagation of aquatic
life. These classifications are used for regulatory purposes, restricting what is permitted on the
land around receiving waters. For example, public access to Class 1b waters may be restricted to
protect drinking water supplies. (See e.g. Honopou IFSAR § 10.0, p. 58.)
82. The Clean Water Act (“CWA”) requires the states to describe the overall water
quality statewide. They must also describe the extent to which water quality provides for the
protection and propagation of a balanced population of shellfish, fish, and wildlife and allows
recreational activities in and on the water. (See e.g. Honopou IFSAR § 10.0, p. 59.)
24
83. The CWA requires states to submit a list of Water-Quality Limited Segments
which are waters that do not meeting state water quality standards and those water’ associated
uses. States must also provide a priority ranking of waters listed for implementation of pollution
controls which are prioritized based on the severity of pollution and the uses of the waters. (See
e.g. Honopou IFSAR § 10.0, p. 59.)
84. Marine water body types are also classified. Marine water classifications are
based on marine conservation areas. The objective of Class AA waters is that they remain in
their natural pristine state as nearly as possible with an absolute minimum of pollution or
alteration of water quality from any human-caused source or actions. Class A waters are
protected for recreational purposes and aesthetic enjoyment, and protection of fish, shellfish, and
wildlife. Discharge into these waters are permitted under regulation. (See e.g. Honopou IFSAR §
10.0, p. 60.)
h. The conveyance of irrigation and domestic water supplies to

downstream points of diversion
conveyance of irrigation and domestic water supplies to downstream points of diversion whether
there are multiple diversions on a single stream. (Exh. C-100, p. 8.)
86. The inclusion of this instream use is intended to ensure the availability of water to
all those who may have a legally protected right to the water flowing in a stream. (See e.g.
Honopou IFSAR § 11.0, p. 62.)
i. The protection of traditional and customary Hawaiian rights
protection of traditional and customary Hawaiian rights is whether there are traditional and
25
customary rights, taro cultivation, and appurtenant rights in the area and the cultural values in the
area. (Exh. C-100, p. 8.)
88. The maintenance of instream flows is important to the protection of traditional
and customary Hawaiian rights, as they relate to the maintenance of stream resources for
gathering, recreation, and the cultivation of taro. (See e.g. Honopou IFSAR § 12.0, p. 63.)
89. Instream uses also include appurtenant water rights which are legally recognized
to a specific amount of surface freshwater-usually from a stream-on the specific property that has
that right. This right traces back to the use of water on a given parcel of land at the time of its
original conversion into fee simple land, i.e. when land allotted by the 1848 Mahele was
confirmed to the awardee by the Land Commission and/or when the Royal Patent was issued
based on the award. The appurtenant right represents the water that was being used on that land
at or shortly before the time of the Mahele. (See e.g. Honopou IFSAR § 12.0, p. 63-64.)
90. The amount of water under an appurtenant right is the amount that was being used
at the time of the Land Commission award and is established by cultivation methods that
approximate the methods utilized at the time of the Mahele, for example, growing wetland taro.
The lands to which appurtenant rights attach are not necessarily adjacent to the freshwater source
(i.e. the water may be carried to the lands via auwai or ditches). (See e.g. Honopou IFSAR §
12.0, p. 63-64.)
2. Noninstream uses
91. When setting IIFS, the information considered regarding noninstream uses
include the presence of diversions; the use of water for municipal, agricultural; or industrial uses;
present use versus potential use; and economic impacts of restricting noninstream use. (Exh. C-
100, pp. 8-9.)

26
92. In most cases, water is diverted from the stream channel via a physical diversion
structure. Diversions take many forms, from small PVC pipes in the stream that remove
relatively small amounts of water to earthen auwai (ditches), hand-built rock walls, and concrete
dams that remove relatively larger amounts of water. Water is most often used away from the
stream channel and is not returned, however, as in the case of taro fields, water may be returned
to the stream at some point downstream of its use. While the return of surface water to the stream
would generally be considered a positive value, this introduces the need to consider water quality
variables such as increased temperature, nutrients, and dissolved oxygen, which may impact
instream uses. Additionally, discharge of water from a ditch system into a stream may introduce
invasive species. (See e.g. Honopou IFSAR § 13.0, p. 86.)
93. In addition to the amount of water being diverted offstream, the Commission must
also consider the diversion structure and the type of use, all of which impact instream uses in
different ways. (See e.g. Honopou IFSAR § 13.0, p. 86.)
E. Individual Hydrologic Units
94. The development of a system of surface water hydrologic units was based on the
need for staff to being able to organize and manage surface water information in a database
environment that could be easily understood by the general public and other agencies.
Hydrologic units are synonymous with watershed areas. (IFSARs § 1.0. p. 4.)
1. Honopou (6034)
a. Physical features
95. The hydrologic unit of Honopou is located northwest of Haleakala. It covers an
area of 2.7 square miles from the lower slopes of Haleakala at 2,286 feet elevation to the sea.
(Honopou IFSAR § 1.1, p. 1.)
27
96. The hydrologic unit of Honopou contains Honopou Stream and its tributary,
Puniawa Stream. (Honopou IFSAR § 1.1, p. 1)
97. Honopou Stream is 4 miles in length, traversing north from its headwaters near
Ulalena to the ocean. Puniawa Stream is 2.6 miles in length with intermittent flow. (Honopou
IFSAR § 1.1, p. 1.)
b. Diversions
98. EMI operates diversions on Honopou Stream at Haiku Ditch, Lowrie Ditch, New
Hamakua Ditch, and Wailoa Ditch. As of March 9, 2004, three 4-inch bypass pipes had been
installed at Haiku Ditch on Honopou to allow water to bypass the diversion structure and flow
back into the stream. (Exh. C-33; Exh. C-52, p. 12; Exh. C-85, p. 10.)
c. Gaging stations
99. Four continuous-record stream gaging stations operated by the USGS, one of
which (station 16587000) is still taking active measurements, are located along Honopou Stream.
a. Station 16595000 is located at 383 feet elevation below Haiku Ditch and
was active in 1907 and from 1932 to 1947. (Honopou IFSAR § 1.1, p. 28, (Table 3-1).)
b. Station 16593000 is located at 441 feet elevation above Haiku Ditch and
was active in 1907 and from 1932 to 1947. (Honopou IFSAR § 1.1, p. 28 (Table 3-2).)
c. Station 16591000 is located at 557 feet at the Lowrie Ditch and was active
from 1932 to 1947. (Honopou IFSAR § 1.1, p. 28 (Table 3-3).)
d. Station 16587000 is located at 1,208 feet near Wailoa (Koʻolau) Ditch and
is still active. (Honopou IFSAR § 1.1, p. 28 (Table 3-4).)
28
d. Streamflow values
100. Honopou is mostly a gaining stream. The average annual ground water gain
measured immediately downstream of Haiku Ditch is 3.56 cfs (2.3 mgd) with fifty percent
originating upstream of the Wailoa Ditch. The average annual groundwater contribution from the
stretch from the Wailoa ditch to the Haiku ditch (1.78 cfs, or 1.15 mgd) equals the groundwater
(base flow) contribution above the Wailoa ditch (1.78 cfs, or 1.15 mgd), so under undiverted
conditions, the base flow below the Haiku ditch would be twice that above the Wailoa ditch.
Despite this doubling of base flow as measured by gages above the Wailoa ditch and below the
Haiku ditch, the four ditches reduce total median stream flow (Q50) by 50 percent, from 2.4 cfs
(1.55 mgd) above the Wailoa ditch to 1.2 cfs (0.775 mgd) below the Haiku ditch. (Exh. C-85, pp.
10, 16.)
e. Instream values
i. Maintenance of aquatic life and wildlife habitats
101. Honopou rates average in comparison to other watersheds in Maui and statewide.
DAR assigns Honopou a total watershed rating of 5 out of 10, a total biological rating of 5 out of
10, and a combined 5 out of 10. Native species observed in the stream include:
Fish — Awaous guamensis, Eleotris sandwicensis, Lentipes con color, and

Sicyoperus stimpsoni
Crustaceans — Atyoida bisulcata and Macrobrachium grandimanus
Mollusks — none observed
102. Also observed were two native dragonflies, Anax strenuous and Pantala
flavescens, and the native damselfly, Megalagrion pacificum. ʻOʻopu alamoʻo was found only in
the upper reaches. Larval recruitment of native fish has been observed near the stream mouth.
(DAR Report on Honopou Stream, Maui, Hawaii, June 2008, pp. 1-2; Exh. C-100, p. 28.)
29
103. The flow in Honopou Stream needed to achieve H90 is unknown. (Exh. HO-1;
Uyeno, Tr., 3/30/15, p. 13, ll. 2-10.)
ii. Outdoor recreational activities
104. The recreational resources of Honopou Stream were classified as moderate by the
Hawaii Stream Assessment's regional recreational committee. The Hawaii Stream Assessment
identified opportunities for swimming related to Honopou Stream and it was not considered to be
a high-quality experience. The following activities are known to occur or have been observed at
or near Honopou: pole and line fishing, trolling/bottom fishing, and some specialized fisheries.
(Exh. C-101, p. 37.)
iii. Maintenance of ecosystems such as estuaries, wetlands,

and stream vegetation
105. The riparian resources of Honopou Stream were not classified by the Hawaii
Stream Assessment. Nearly 25% of the Honopou hydrologic unit falls within the Koʻolau Forest
Reserve. Nearly 21% of Honopou is classified as seasonal, non-tidal palustrine wetlands
occurring in the headwaters of the hydrologic unit. The density of threatened and endangered
plant species is high at elevations above 1,300 feet, while the rest of the unit, roughly 72%, has a
low concentration of threatened and endangered plant species at lower elevations. (Exh. C-101,
pp. 41-44.)
iv. Aesthetic values
106. The headwaters of Honopou Stream originate in the lush tropical forests of the
Koʻolau Forest Reserve and the stream flows through approximately two miles of evergreen
forests before tumbling over Twin Falls and into a natural pool below. Twin Falls is a popular
tourist attraction where people are often seen jumping into the pool from the top of the waterfall.
30
Below the waterfall, the surrounding vegetation changes to mainly grasses and shrubs. At about
the same elevation, the tributary of Puniawa Stream begins and flows through cultivated and
shrub lands. Honopou Stream empties into Puniawa Bay, which can be viewed above the ocean
cliffs at Honopou Point. (Exh. C-101, p. 48.)
v. Navigation
107. No navigation values are present. (Exh. C-101, p. 50.)
vi. Instream hydropower generation
108. HC&S operates three run-of-river hydroelectric facilities on the Wailoa Ditch,
which is supplied with water from Honopou Stream. (Exh. C-101, p. 51.)
vii. Maintenance of water quality
109. Honopou Stream does not appear on the 2006 List of Impaired Waters in Hawaiʻi,
Clean Water Act § 303(d). While some data exist for Honopou Stream, there were not sufficient
data for decision-making. Samples collected in Honopou Stream indicated no exceedance of
water quality standards. (Exh. C-101, p. 53; Exh. C-85, p. 11.)

110. There are 22 registered diversions, 15 of which are not EMI's. Of these 15, 13
were declared for domestic purposes, in part, with a total of 15 service connections. All 15
diversions are utilized for irrigation of various crops and taro. (Exh. C-101, p. 55.)
ix. Protection of traditional and customary Hawaiian

rights
111. According to the 1990 Hawaii Coastal Zone Management Program's Hawaiian
Fishpond Study for the Islands of Hawaii, Maui, Lanai, and Kauai, there are no fishponds
present in the hydrologic unit of Honopou. (Exh. C-101, p. 66.)
31
e. Kuleana users
112. CWRM records for the hydrologic unit of Honopou indicate that there are a total
of 22 registered diversions. Six of the diversions were declared for taro cultivation. (Exh. C-101,
p. 68.)
113. In Table No. 1 at page 10 of Nā Moku's Opening Brief, Nā Moku claims 26.06
acres of cultivable area in Honopou and "Total Estimated Water Needs for Taro (in addition to
64% base flow)" of 2.61 - 7.82 mgd. This is said to be based on Exhibits A-137 (the “Nā Moku
TMK Spreadsheet”) and Exhibits A-138 and A-139 (tax maps with highlighted areas referencing
certain parcels in Honopou).
114. The 26.06 acres is simply the sum of the total acreage of TMK Nos. 2-9-01-14,
29-01-23, 2-9-01-25, 2-9-14-13, and 2-9-14-23, which are described in the declaration of Lurlyn
Scott ("Scott") as parcels in which her family has an interest. These appear to be the same
properties referenced generally in the declarations of her cousins, Sanford Kekahuna, Jonah
Jacintho, Juliana Jacintho and Lezley Jacintho.
115. The only information offered about the specific locations on these properties
currently being used or planned to be used for taro cultivation is in Scott's declaration and
Exhibit A-149, a schematic drawing she prepared to show the loi system on her family's
properties in Honopou. She initially estimated this system to be approximately one acre in size,
but later increased her estimate to two acres. (Scott, WDT 12/16/14, 91 30; Scott, Tr., 3/4/15, p.
193, ll. 19-24.)
116. Nā Moku has estimated the water need for taro on Honopou by simply
multiplying the total acreage of all the parcels in which Scott's family has an interest by Paul
32
Reppun's (“Reppun”) estimate of 100,000 to 300,000 gad as the irrigation requirement for taro,
which resulted in the 2.61 mgd — 7.82 mgd (in addition to 64% baseflow) claimed by Nā Moku.
117. The median baseflow of Honopou at the level of the Haiku Ditch, according to
USGS, is 2.3 mgd, with 50% being contributed by ground water above Wailoa Ditch and 50%
between Wailoa Ditch and Haiku Ditch. This is the average amount estimated by USGS to be in
the stream at the level of the Haiku Ditch in its natural condition when it is not raining. Nā Moku
wants 1.472 mgd (64% of 2.3 mgd) to be left in the stream before calculating the amount to be
restored to satisfy taro needs. This would only leave 0.828 mgd of average baseflow from which
to meet Nā Moku's taro water claim of 2.61 mgd — 7.82 mgd. There is obviously not enough
base flow in Honopou Stream, even in the absence of any diversions by EMI, to satisfy Nā
Moku's claimed amounts for "restoration." (Exh. C-85, pp. 13-16.)
118. Honopou Stream can, however, support cultivation by Scott's family of the entire
one to two acre loi system (the “Kekahuna loʻi system”) shown on Exh. A-149. Using the taro
irrigation requirement of 130,000 to 150,000 gad previously established by CWRM in the Na
Wai ʻEha case, the flows needed would be 260,000 to 300,000 gad. At the current IIFS of 1.29
mgd below the Haiku Ditch, this irrigation requirement can easily be satisfied without
dewatering the stream between the loi intake diversion and the outflow ditch.
119. Nā Moku has complained that, notwithstanding the current availability of water at
the Kekahua loʻi system intake, the water at times is too warm for taro and thus more water
needs to be released into the stream.
120. Sometime between 2008 and 2010, USGS installed gages in the Kekahuna loʻi
system to measure water flow and temperature in the complex, among other things. The gages
are no longer operational. (Scott, Tr., 3/4/15, p. 179, ll.7-30, p. 180, l.20 to p. 182, l. 6.)
33
121. USGS gage 205548156143901 (“Gage ‘3901”) was installed at the ʻauwai at the
top of the loʻi complex and it measured the inflow temperature of water. USGS gage
205549156143601 (“Gage ‘3601”) was installed on the ʻauwai near the bottom on the western
boundary of the complex (Loʻi Outlet #1) and it measured the outflow temperature of water.
USGS gage 205549156143602 (“Gage ‘3602”) was installed on an ʻauwai situated near the
middle of the complex (Loʻi Outlet #2) and it also measured the outflow temperature of water.
The locations of the gages are depicted on Exhibit A-149A. (Scott, Tr., 3/4/15, p. 184, 11. 12-20,
p. 194, l.3 to p. 195, l.3; Exh. A-149A.)
122. In general, the outflow temperatures recorded at Gage ‘3601 in Loʻi Outlet #1
tended to be lower and exhibited less variability than the outflow temperatures recorded at Gage
ʻ3602 in Loʻi Outlet #2. For example, during the period from July 2009 to July 2010, the daily
mean inflow temperatures recorded at Gage ‘3901 ranged between 64°F and 76°F. During the
same period, the daily mean outflow temperatures recorded at Gage ‘3601 ranged between 65°F
and 77°F, whereas the daily mean outflow temperatures recorded at Gage ‘3602 ranged between
68°F and 82°F. (Exh. A-155; Exh. A-156; Exh. A-157.)
123. At the location of Gage ‘3602, the water in the ‘auwai has passed through a series
of taro patches above. (Scott, Tr., 3/4/15, p. 202, ll. 10-19.)
124. The ʻauwai in which Gage ‘3601 was installed takes water directly from the
intake and traverses along the western boundary of the loʻi complex, bypassing taro patches that
are in cultivation. The cooler water from this ʻauwai can be, but is not, used to irrigate those
patches by diverting it to an ‘auwai in the middle of the complex. (Scott, Tr., 3/4/15, p. 195, l. 4
to 196, l.6, p. 196, ll. 7-22; Hew, Tr., 3/17/15, p. 117, l. 1 to p. 118, l.9; Exh. A-149A.)
34
125. Reppun testified that the way each farmer manages his water is important to
understanding how much and why outflow temperatures might exceed inflow temperatures.
Reppun did not study and did not express an opinion on the Kekahuna loʻi system water
management practices as they may affect the higher temperature of the outflows measured by
Gage ‘3602 versus Gage ‘3601. There was also no explanation offered by Nā Moku for this
discrepancy. (Reppun, Tr., 3/4/15, p. 17, 11. 16-23, p. 59, 1. 2 to p. 60, 1. 4, p. 77, 1. 6 to p. 83,
1. 13, p. 98, l. 11 to p. 99, l. 11.)
126. The flow measurements recorded at USGS gage station 16595100 on Honopou
Stream in the vicinity of the Kekahuna loʻi system consistently exceed 300,000 gpd. (Exh. A-
155, pp. 1, 4; Hew, Tr., 3/17/15, p. 113, 1.4 to p. 116, l. 24.)
127. EMI had previously taken measurements of flow and temperature at the intake to
the ʻauwai feeding the Kekahuna loʻi complex for a 14-month period from March 15, 2004 to
May 20, 2005 during which time water was being passed through EMI's Haiku Ditch diversion
via three 4-inch pipes. During the period covered by those measurements, the ʻauwai intake gate
was not fully open because if it were, all of the water available at the intake would overflow the
banks of the ʻauwai during times of high flows in Honopou Stream. The flow rate measured at
the intake consistently remained in excess of 235,500 gpd except on one occasion, even during
times of low rainfall. At certain times, the flow rate was so high that it was not possible to obtain
a measurement with a Parshall Flume. (Exh. C-52, p. 13; Exh. C-107, Exh. A-13 thereto.)
35
2. Hanehoi (6037)
128. The hydrologic unit of Hanehoi is located in the northwest section of Haleakala. It
contains Hanehoi Stream and Puolua (Huelo) Stream and covers an area of 1.41 square miles on
the lower slopes of Haleakala from 1,361 feet elevation to the sea. (Hanehoi IFSAR § 1.1, p. 1)
129. Hanehoi Stream is 1.3 miles in length and flows intermittently in the upper
section of the stream. (Hanehoi IFSAR § 1.1, p. 1.)
130. A terminal waterfall at the mouth of the stream would likely restrict upstream
migration. (Exh. C-85, p. 20.)
b. Diversions
131. EMI operates diversions on Hanehoi Stream at Haiku Ditch, Lowrie Ditch, New
Hamakua Ditch, and Wailoa Ditch. (Exh. C-33.)
132. A diversion for domestic purposes serves approximately 30 families, or
approximately 100 people in the Huelo community. There is rarely water available in residents'
sections of the streams under present conditions, so they are not using stream water for their
crops. (Exh. C-85, pp. 21-22.)
133. The estimated BFQ50 undiverted flow of Hanehoi Stream is 1.64 mgd (2.54 cfs)
below the Lowrie Ditch and above the Haiku Ditch. The estimated BFQ50 undiverted flow of
Puolua (Huelo) Stream is 0.69 mgd (1.07 cfs) below the Lowrie Ditch and above the Haiku Ditch
and 0.95 mgd (1.47 cfs) below the Haiku Ditch. The estimated BFQ50 undiverted flow at the
mouth of Hanehoi Stream is 3.46 mgd (5.35 cfs).
36
c. Gaging stations
134. No USGS gaging station was installed in Hanehoi Stream. (Hanehoi IFSAR § 3.0
at 27.)
135. Measured stream flow data are limited for Hanehoi/Puolua Streams, so flow
statistics were estimated with regression equations. There is no data on whether Hanehoi and
Puolua Streams are losing or gaining flow from groundwater. There is currently very little flow
in Hanehoi Stream, but residents reported that the streams had continuous flow before the 1960s
except in times of drought, and archaeological evidence of extensive taro loʻi along the lower
reaches of the streams suggests that water was once readily available. Streamflow data from
long-term gaging stations around the islands indicate that monthly mean total and base flows
have generally decreased from the 1940s to 2002, which is consistent with decreasing rainfall
trends statewide. (Exh. C-85, pp. 20, 26.)9
136. Based on the regression equation for ungaged basin of Hanehoi, for Hanehoi
Outlet, which is near the coast at 12 feet above mean sea level, the BFQ50 is 5.35 cfs and at
Hanehoi middle, the middle reach of Hanehoi at 536 feet elevation, BFQ50 is 2.54 cfs. (Hanehoi
IFSAR § 3.0, pp. 28-29, Table 3-4.)
137. Based on the regression equation for ungaged basin of Huelo lower, the lower
reach of Huelo at 420 feet elevation, BFQ50 is 1.47 cfs, and at Huelo middle, the middle reach of
Huelo at 528 feet elevation, BFQ50 is 1.07. (Hanehoi IFSAR § 3.0, pp. 28-29, Table 3-4.)
9
Hanehoi/Puolua are outside the 2005 Flow Study area in which the regression equations
were developed, so the estimated flow statistics may not be representative of the flow conditions
in Hanehoi and Puolua (Huelo) Streams. (Exh. C-85, p. 20.)
37
e. Instream values
138. Hanehoi rates below average in comparison to other watersheds in Maui and
statewide. DAR assigns Hanehoi a total watershed rating of 6 out of 10, a total biological rating
of 2 out of 10, and a combined 4 out of 10. Native species observed in the stream include:
Fish — none observed

Crustaceans —Atyoida bisulcata
Mollusks — none observed
139. Also observed were two native dragonflies, Anax strenuous and Pantala
flavescens and two native damselflies, Megalagrion nigrohamatum and Megalagrion pacificum.
Hanehoi has degraded native aquatic and insect biota in the middle and lower reaches. Large
sections of the stream are currently unsuitable habitat for native animals. Only native mountain
ʻōpae observed and are present in the upper reaches. Native dragonflies and damselflies were
observed in the upper reaches as well. (DAR Report on Hanehoi Stream, Maui, Hawai 1, June
2008, pp. 1-2; Exh. C-85, p. 20; Exh. C-100, p. 44.)
140. The flow in Hanehoi Stream needed to achieve H90 is unknown. (Exh. HO-1.)
141. The recreational resources of Hanehoi Stream were classified as limited by the
Hawaii Stream Assessment’s regional recreational committee. The Hawaii Stream Assessment
identified no recreational opportunities for Hanehoi Stream. (Hanehoi IFSAR § 5.0, p. 33.)

142. Riparian resources of Hanehoi Stream were not classified by the Hawaii Stream
Assessment. Nearly 30% of Hanehoi falls within the Koʻolau Forest Reserve. Nearly 26% of
Hanehoi is classified as seasonal, non-tidal palustrine wetlands occurring in the headwaters of

38
the hydrologic unit. The density of threatened and endangered plant species is high at elevations
above 1,200 feet, while the rest of the unit, roughly 79%, has a low concentration of threatened
and endangered plant species at lower elevations. (Hanehoi IFSAR § 6.0, pp. 37-40.)
143. The headwaters of Hanehoi Stream originate in the lush tropical forests of the
Koʻolau Forest Reserve. Along with its tributary Puolua (Huelo) Stream, they flow northeasterly
through miles of evergreen forests before reaching the confluence where the surrounding
vegetation is dominated by grasses and shrubs. Hanehoi Stream empties into the western
boundary of Hoalua Bay, which can be viewed above the ocean cliffs at Hanehoi Point. (Hanehoi
IFSAR § 7.0, p. 44.)
v. Navigation
144. No navigation values are present. (Hanehoi IFSAR § 8.0, p. 46.)
145. HC&S operates the run-of-river hydroelectric facilities on the Wailoa Ditch,
which is supplied with water from Hanehoi Stream. (Hanehoi IFSAR § 9.0, p. 47.)
146. Neither Hanehoi nor Puolua (Huelo) Stream appears on the 2006 List of Impaired
Waters in Hawaii, Clean Water Act § 303(d). While some data exist for Hanehoi, there were not
sufficient data for decision-making. Hanehoi Stream is Class 2 from the coast to approximately
1,200 feet elevation. Above that elevation, it is Class 1. Puolua (Huelo) Stream is Class 2.
Marine waters at the mouth of the hydrologic unit of Hanehoi are mostly Class AA waters,
except for the northern tip of the hydrologic unit, where they are Class A waters. (Hanehoi
IFSAR § 10.0, p. 49.)
39
147. There are a total of 12 registered diversions, of which five are non-EMI. Of these
five, one was declared for domestic purposes, in part, for one service connection. Four of the five
diversions are utilized for irrigation of various crops and livestock, including the cultivation of
taro. The one remaining registrant claimed to use water for irrigation 0.09 acres of taro, but in the
course of the field verification, no diversion could be located and the declarant expressed the
intention to grow taro in the future. (Hanehoi IFSAR § 11.0, p. 51.)

rights
148. According to the 1990 Hawaii Coastal Zone Management Program’s Hawaiian
present in the hydrologic unit of Hanehoi. (Hanehoi IFSAR § 12.0, p. 61.)
f. Kuleana users
149. CWRM records for the hydrologic unit of Hanehoi indicate that there are a total
of 12 registered diversions, of which five are non-EMI. Of these five, two registrants declared
water use for taro cultivation with an estimated cultivable area of 2.25 acres. One other registrant
claimed to use water for 0.09 acres of taro, but in the course of the field verification no diversion
could be located and the declarant expressed the intention to grow taro in the future. (Hanehoi
IFSAR § 12.0, p. 63.)
150. There is one taro farmer, Ernest Schupp, who has cultivated approximately one
acre of taro off and on since 1998 on the parcel designated as TMK No. 2-9-08:15, which is
owned by George and Mary Keala. The intake for his auwai is on Puolua Stream just below
40
where the Haiku Ditch crosses and diverts water from the stream. Water passes through the
Haiku Ditch diversion through two four inch pipes. (Schupp, WDT 12/15/14, ¶J[ 3, 9, 13.)
151. Mr. Schupp also testified that he is involved with an organization that would like
to restore ancient loi along the stream that have long been abandoned and that may have
appurtenant rights, but no testimony was submitted by the owners of the property where these
ancient loi are located. (See generally, Schupp on behalf of TARO, WDT 12/15/14.)
152. Neola Caveny owns a parcel adjacent to Hanehoi Stream but does not cultivate
taro. She currently obtains water for her property from a private catchment system, and claims
that she is unable to exercise her riparian rights to use water from Hanehoi Steam due to low
stream flows. (See generally, Caveny, WDT 12/13/14.)
153. Solomon Lee owns a number of parcels adjacent to Hanehoi Stream. While no
taro is currently cultivated on these parcels, he testified that taro was previously cultivated on
portions of these parcels and he would like to restore and cultivate taro on three acres. (See
generally, Lee, WDT 12/30/14.)
154. Lucienne De Naie tesitified in support of restoration but does not reside on either
stream and thus does not claim any appurtenant or riparian rights. (See generally, De Naie, WDT
12/30/14.)
155. Donald M. Halley Jr. and Crista A. Moil similarly testified in support of
restoration, but do not reside on land bordered by any stream and thus do not claim any
appurtenant or riparian rights. (See generally, Halley, WDT 12/30/14.)
156. Michael D’Addario is the land manager of the Hale Akua Garden Farm and
Agricultural Education Center (the “Center”) located on top of a steep pali overlooking Hanehoi
Stream. Because of its elevation where the Center’s land abuts the stream, the Center only
41
receives water from Hanehoi Stream through the Huelo Community pipeline. Mr. D’Addario
alluded in his testimony to possible appurtenant rights in favor of the Center, but did not offer
any evidence of prior taro cultivation on the Center’s land or explain how, given its elevation
above the stream, Hanehoi Stream may have been the irrigation source for any such prior taro
cultivaton. (See generally, D’Addario, WDT 12/30/14.)
3. Waikamoi (6047)
157. The hydrologic unit of Waikamoi contains the Waikamoi Stream, Alo Stream,
and Wahinepeʻe Stream and covers 5.3 square miles from the upper slopes of Haleakala at 9,300
feet elevation to the sea. (Waikamoi IFSAR § 1.1, p. 1.)
158. Waikamoi Stream is 8.5 miles in length, traversing north from the headwaters of
its tributaries to Hosmer Grove Spring at the 6,560 feet altitude to the ocean. A major tributary to
Waikamoi Stream is Alo Stream, which branches east at about 840 feet altitude. East of
Waikamoi Stream within the same hydrologic unit is Wahinepe‘e Stream, which is a mile in
length with headwaters beginning at about the 800 feet elevation. (Waikamoi IFSAR § 1.1, p. 1.)
159. The presence of terminal waterfalls in Waikamoi Stream and Wahinepe‘e Stream
have restricted those native species that lack climbing ability from inhabiting the stream.
(Waikamoi IFSAR § 4.4, pp. 51, 52; DAR Report on Waikamoi Stream, Maui, Hawaii, August
2009, pp. 6, 7.)
b. Diversions
160. EMI operates diversions on Waikamoi Stream at the Koʻolau/Wailoa Ditch,
Spreckels Ditch, and the Manuel Luis/Center Ditch. Waikamoi Stream is also diverted by the
Upper Kula Pipeline and Lower Kula Pipeline. (Waikamoi IFSAR § 3.3, p. 30.)
42
161. Alo Stream is diverted by the Koʻolau/Wailoa Ditch and New Hamakua Ditch.
(Waikamoi IFSAR § 3.3, p. 30.)
162. Wahinepeʻe Stream is diverted by the Manuel Luis/Center Ditch. (Waikamoi
IFSAR § 3.3, p. 30; Exh: C-33.)
c. Gaging stations
163. Waikamoi Stream has one active USGS continuous-record stream gaging station
and seven inactive gaging stations, one of which was located on Alo Stream. Station number
5528 remains active, and is located at an altitude of 4,487 feet, upstream from the Upper Kula
Pipeline. (Waikamoi IFSAR § 3.3, p. 29 (Table 3-2).)
164. According to USGS, the natural median baseflow immediately downstream of a
minor diversion at the upper reach of Waikamoi Stream is 3.50 cfs (1.88 mgd). (Table attached
to Gingerich WDT 10/31/14, p. 3; USGS Regression Study, p. 66 (Table 12).)
165. According to USGS, the natural median baseflow at the upper reach of Alo
Stream directly uptream of the Spreckels Ditch is 1.50 cfs (0.81 mgd); after the confluence of
Alo Stream and Waikamoi Stream at the middle-upper reach directly upstream of the Center
Dich, it is 6.60 cfs (3.55 mgd); at the middle-lower reach, it is 6.70 cfs (3.61 mgd); and at the
lower reach it is 7.00 cfs (3.77 mgd). (Table attached to Gingerich WDT 10/31/14, p. 3; USGS
Regression Study, p. 66 (Table 12).)
166. According to USGS, the natural median baseflow at the middle reach of
Wahinepe‘e Stream is 0.90 cfs (0.48 mgd). (Table attached to Gingerich WDT 10/31/14, p. 3;
USGS Regression Study, p. 66 (Table 12).)
43
e. Instream values
167. Only the native ʻoʻopu alamo ʻo (Lentipes concolor) and ʻōpae kalaʻole (Atyoida
bisulcata) were observed in Waikamoi Stream. During the more recent surveys, both species
were observed in the upper reach; although, the ʻōpae kala’ole was seen in the middle and
headwater reaches of the stream in earlier surveys. The Hawaii Stream Assessment rates
Waikamoi as “without,” meaning no native species were present during prior surveys. Waikamoi
rates high in comparison to other watersheds in Maui and statewide. DAR assigns Honopou a
total watershed rating of 7 out of 10, a total biological rating of 7 out of 10, and a combined 8 out
of 10. The study to assess the effects of surface water diversion systems on habitat availability
found that Waikamoi maintained 50 to 75 percent of the natural habitat below Wailo and New
Hamakua Ditch under diverted conditions. Native species observed in the stream include:
Fish — Awaous guamensis, Eleotris sandwicensis, Kuhlia xenura and Sicyoperus

stimpsoni
Insects — Anax Junius, Anax sp, Anax strenuous, Limonia grimshawi, Limonia
Jacobus, Megalagrion blackburni, Megalagrion calliphya, Megalagrion
sp., Procanacae acuminata, Procanace confusa, Saldula exulans, Scatella
cilipes, Scatella clavipes, Scatella femoralis, Telmatogeton abnormis,
Telmatogen sp., Telmatogeton torrenticola
Snails — Ferrissia sharpi and Neritina granosa Sponge — Heteromeyenia
baileyi
(DAR Report on Waikamoi Stream, Maui, Hawaii, August 2009, pp. 5-6; Waikamoi IFSAR § 4.4,
p. 51.)
168. The estimated natural (undiverted) median baseflow of Waikamoi Stream is 6.60
cfs (4.26 mgd). The amount of flow in Waikamoi Stream below the confluence of Waikamoi
Stream and Alo Stream needed to achieve H90 is 4.20 cfs (2.71 mgd). (Table attached to
Gingerich WDT 10/31/14, p. 3; Exh. HO-1.)

44
169. The estimated natural (undiverted) median baseflow of Wahinepe‘e Stream is
0.90 cfs (0.58 mgd). The amount of flow in Wahinepe‘e Stream needed to achieve H90 is 0.58 cfs
(0.37 mgd). (Table attached to Gingerich WDT 10/31/14, p. 3; Exh. HO-1.)
170. Recreational resources of Waikamoi Stream were classified as “substantial” by
the Hawaii Stream Assessment’s regional recreation committee. Hawaii Stream Assessment
identified opportunities for hunting, swimming, and scenic views. None of the recreational
opportunities were considered to be a high-quality experience. CWRM determined that trolling,
bottom fishing, and opihi picking were the only activities known to occur or observed at or near
Waikamoi. (Waikamoi IFSAR § 5.0, p. 60.)

171. Riparian resources of Waikamoi Stream were classified as “substantial” by the
Hawaii Stream Assessment. About 29% of the Waikamoi hydrologic unit falls within the
Haleakala National Park. Approximately 28% of the Waikamoi hydrologic unit falls within the
Koʻolau Forest Reserve. Approximately 7% of the Waikamoi hydrologic unit falls within the
Waikamoi Preserve. (Waikamoi IFSAR § 6.0, pp. 63-64.)
172. The headwaters of Waikamoi Stream originate in Haleakala National Park where
vegetation is predominately native shrub lands with sparse alien grasses. In the intermediate
slopes of the hydrologic unit, Waikamoi Stream flows through native communities of Ohia
forests and Uluhe shrub lands that lie within the Waikamoi Preserve and Koʻolau Forest Reserve.
The lower elevations are mostly alien forests of the Koʻolau Forest Reserve. The surrounding
45
vegetation for Wahinepe‘e Stream is predominately alien forests. A number of waterfalls and
plunge pools are located along the lower reaches of Waikamoi Stream, which provide scenic
spots for the public. Among the many waterfalls is Waikamoi Falls that is about 70-foot high and
it can be seen from Hana Highway. There are two springs in the hydrologic unit, Hosmer Grove
Spring at the 6,560 feet altitude near the headwaters and Waikamoi Spring at 3,200 feet altitude.
Keopuka Rock, a State seabird sanctuary, can be seen from the shoreline of the hydrologic unit.
Located at Hana Highway between Kōlea and Waikamoi Streams is the Waikamoi Roadside
Park, which offers views of Waikamoi Stream and access to the upper reach of the stream.
v. Navigation
173. No navigation values are present. (Waikamoi IFSAR § 8.0, p. 74.)
vi. lnstream hydropower generation
174. No instream hydropower generation occurs in Waikamoi. (Waikamoi IFSAR §
9.0, p. 75.)
175. Waikamoi Stream appears on the 2006 List of Impaired Waters in Hawaii, Clean
Water Act § 303(d). Waikamoi Stream is classified as Class la inland waters at its headwater
tributary that lies in the Haleakala National Park, and in the lower reach that lies within the
Koʻolau Forest Reserve. From the tributary down to approximately 6, l00 feet elevation and the
short section of the stream near the ocean, Waikamoi Stream is classified as Class 2 inland
waters. Between the 6, l00 feet and 1,300 feet altitudes, the stream is classified as Class lb inland
waters as parts of the stream lie in the Waikamoi Preserve (upper reaches) and the Koʻolati
46
Forest Reserve (lower reaches). Marine waters at the mouth of the Waikamoi hydrologic unit are
Class AA waters. (Waikamoi IFSAR § 10, pp. 80-81.)

176. There is one diversion, registered by Puohokama Farm, that diverts water for
domestic purposes. The diversion is a 1-inch pipe and is also used for watering of livestock,
aquaculture, hydroelectric power generation, and irrigation. The DOH Safe Drinking Water
Branch does not currently regulate any public water systems in the Waikamoi hydrologic unit.

rights
177. According to the 1990 Hawaiʻi Coastal Zone Management Program’s Hawaiian
present in the Waikamoi hydrologic unit. (Waikamoi IFSAR § 12.0, p. 100.)
f. Kuleana users
178. CWRM records for the hydrologic unit of Waikamoi indicate that there are a total
of eleven registered diversions (10 by EMI or MDWS). The remaining diversion is registered by
Puohokamoa Farm, and is declared for domestic water use purposes, watering of livestock,
aquaculture, hydroelectric power generation, and irrigation. Waikamoi does not currently have
any active taro diversions. (Waikamoi IFSAR § 12.0, p. 94; Exh. C-90, p. 17.)
47
4. Puohokamoa (6048)
179. The hydrologic unit of Puohokamoa covers 3.15 square miles, extending from the
coast to inland elevation of 1,700 feet above mean sea level that terminates into the slope of a
cinder cone. (Puohokamoa IFSAR § 2.1, p. 11.)
180. Puohokamoa Stream splits into three branches (west, middle, and east branch) 4.4
miles from the coast at 2, l00 feet elevation. The longest is the middle branch that is headed at
the 4,400 feet altitude 6.4 miles inland. (Puohokamoa IFSAR § 3.3, p. 27 and 29.)
181. Puohakamoa Stream appears to be mostly a gaining stream, except for a losing
and a dry reach in the headwater tributaries near the Lower Kula pipeline. (Exhibit C-90, p. 19)
b. Diversions
182. EMI operates diversions on Puohokamoa at the Lower Kula Pipeline and Upper
Kula Pipeline for MDWS as well as at the Spreckels Ditch, Manuel Luis Ditch, and Koʻolau
Ditch. (Puohokamoa IFSAR § 13.1 at 98-105, Table 13-1; Exh. C-33.)
c. Gaging stations
183. Six inactive USGS continuous-record stream gaging stations were located in the
hydrologic unit of Puohokamoa. (Puohokamoa IFSAR § 3.3, p. 28.)
184. According to USGS, the natural median baseflow at the upper reach of
Puohokamoa Stream immediately downstream of the Koʻolau Ditch is 6.40 cfs (3.44 mgd); at the
middle-upper reach immediately downstream of the Manuel Luis Ditch, it is 8.40 cfs (4.52 mgd);
at the middle-lower reach it is 10.00 cfs (5.38 mgd); and at the lower reach it is 11.00 cfs (5.92
48
mgd). (Table attached to Gingerich WDT 10/31/14, p. 2; USGS Regression Study, p. 61 (Table
11) and p. 66 (Table 12).)
e. Instream values
185. The Hawaii Stream Assessment classifies the aquatic resources of Puohokamoa
Stream as “limited”, meaning very little native species were present. Only the native ʻo‘opu
alamoʻo (Lentipes concolor), ʻoʻopu nakea (Awaous guamensis), and ʻōpae kalaʻole (Atyoida
bisulcata) were observed in Puohokamoa Stream. During the more recent surveys, ʻoʻopu
alamoʻo was observed in the middle reach below the diversions. Puohokamoa Stream rates in the
middle in comparison to other watersheds in Maui and statewide. DAR assigns Puohokamoa a
total watershed rating of 8 out of 10, a total biological rating of 5 out of 10, and a combined
overall rating of 5 out of 10. Native species observed in the stream include:
Fish — Awaous guamensis and Lentipes concolor

Crustaceans — Atyoida bisulcata
Insects — Anaxjunius, Anax sp, Megalagrion sp., and Telmatogen sp.
(Puohokamoa IFSAR § 4.2, p. 42 and § 4.4, p. 46; DAR Report on Puohokamoa Stream, Maui,
Hawai ʻi, October 2009, p. 6.)
186. The estimated natural (undiverted) median baseflow of Puohokamoa Stream is
8.40 cfs (5.43 mgd). The amount of flow in Puohokamoa Stream needed to achieve Hgo is 5.40
cfs (3.49 mgd). (Table attached to Gingerich WDT 10/31/14, p. 2; Exh. HO-1.)
187. The recreational resources of Puohokamoa Stream were classified as “substantial”
by the Hawaii Stream Assessment regional recreational committee. The Hawaii Stream
Assessment identified opportunities for hunting, swimming, and scenic views related to
49
Puohokamoa. Of the three, only swimming was considered to be a high-quality experience.
There is a hunting area of approximately 1.8 square miles or 56% of the Puohokamoa hydrologic
unit, and it lies within the lower half of the hydrologic unit. (Puohokamoa IFSAR § 5.0, p. 54.)

188. Riparian resources of Puohokamoa Stream were classified as “substantial” by the
Hawaii Stream Assessment. About 56% of Puohokamoa unit lies within the Koʻolau Forest
Reserve, and less than 1% within the Waikamoi Preserve. Approximately 76% of Puohokamoa is
classified as non-tidal palustrine wetlands occurring in the upper slopes of the hydrologic unit.
Based on current designations, the Puohokamoa hydrologic unit contains critical habitat areas for
five plant species: Brighamia rochii (Pua'ala), Cyanea hamatiflora ssp. hamatiflora, Cyanea
mceldowneyi, Diplazium molokaiense, Phyllostegia mannii. The density of threatened and
endangered plant species is high at elevations above 1,300 feet, while the rest of the unit, roughly
14%, has a low concentration of threatened and endangered plant species at lower elevations.
(Puohokamoa IFSAR § 6.0, pp. 58-60.)
189. Puohokamoa Stream is fed by lush native communities of Ohia forests and
forested wetlands that dominate the upper and intermediate slopes of the hydrologic unit.
Vegetation surrounding the lower reaches of Puohokamoa Stream is predominately alien forests
that lie within the Koʻolau Forest Reserve. A number of waterfalls are located along the middle
and lower reaches of the stream, most of which are followed by a plunge pool. Among the many
waterfalls is Puohokamoa Falls that is about 20-foot high and it can be seen from Hana Highway.
50
Keopuka Rock, a State seabird sanctuary, can be seen from the shoreline of the hydrologic unit.
(Puohokamoa IFSAR § 7.0, p. 66.)
v. Navigation
190. No navigation values are present. (Puohokamoa IFSAR § 8.0, p. 68.)
191. No instream hydropower generation values are present. (Puohokamoa IFSAR §
9.0, p. 69.)
192. Puohokamoa Stream appears on the 2006 List of Impaired Waters in Hawaii,
Clean Water Act § 303(d). While some data exist for Puohokamoa, there were not sufficient data
for decision-making; therefore, no decision was made pertaining to the attainment of water
quality standards or the applicable designated uses. Puohokamoa Stream is classified as Class lb
inland waters from its headwaters to approximately 1,200 feet elevation, as the surrounding land
is in the conservation subzone “protective.” From there down to about 700 feet elevation,
Puohokamoa Stream is classified as Class la inland waters because the stream lies in the Koʻolau
Forest Reserve. From there to the sea, it is classified as Class 2 inland waters. Marine waters at
the mouth of the Puohokamoa hydrologic unit are Class AA waters. (Puohokamoa IFSAR §
10.0, p. 74.)

193. Other than EMI’s and MDWS’ diversions, no diversions divert water from
Puohokamoa Stream for domestic or irrigation purposes. The DOH Safe Drinking Water Branch
does not currently regulate any public water systems in the Puohokamoa hydrologic unit.
(Puohokamoa IFSAR § 11.0, p. 76.)

51
rights
194. According to the 1990 Hawaiii Coastal Zone Management Program’s Hawaiian
present in the Puohokamoa hydrologic unit. (Puohokamoa IFSAR § 12.0, p. 91)
f. Kuleana users
195. CWRM records for the hydrologic unit of Puohokamoa indicate that there are a
total of eight registered diversions (all EMI or MDWS). None of the diversions were declared for
taro cultivation or other domestic purposes. Puohokamoa currently does not have any active taro
diversions. (Puohokamoa IFSAR § 12.0, p. 93; Exh. C-90, p. 21.)
5. Haʻipuaʻena (6049)
196. The hydrologic unit of Haʻipuaʻena is located north of Haleakala, and it covers an
area of 1.6 square miles from the intermediate slopes of Haleakala at 6, l00 feet elevation to the
sea. (Haʻipuaʻena IFSAR § 1.1, p. 1.)
197. Haʻipuaʻena Stream is 7.7 miles in length, traversing north from its headwaters
near 5, l00 feet elevation to the altitude. (Haʻipuaʻena IFSAR § 1.13, p. 1.)
198. Haipuena Stream appears to be mostly a gaining stream, except a losing reach
above the Spreckels Ditch and a dry reach downstream from the Manuel Luis Ditch. When flow
is abundant, Haʻipuaʻena Stream terminates as a waterfall, allowing only ʻōpae and ʻoʻopu
alamoʻo to migrate upstream. (Exh. C-90, p. 21; Haʻipuaʻena IFSAR § 4.3, p. 43.)
52
b. Diversions
199. EMI operates diversions on Haʻipuaʻena Stream at the Upper Kula Pipeline,
Lower Kula Pipeline, Spreckels Ditch, Manuel Luis Ditch, and Koʻolau Ditch. (Haʻipuaʻena
IFSAR § 13.1 at 96-101, Table 13-1; Exh. C-33.)
c. Gaging stations
200. Four inactive USGS continuous-record gaging stations are in the hydrologic unit
of Haʻipuaʻena. (Haʻipuaʻena IFSAR § 3.3, p. 27.)
Haʻipuaʻena Stream immediately downstream of Spreckels Ditch is 3.60 cfs (1.94 mgd); at the
middle-upper reach immediately downstream of the Manuel Luis Ditch it is 4.30 cfs (2.31 mgd);
at the middle-lower reach it is 4.90 cfs (2.64 mgd); and at the lower reach it is 5.50 cfs (2.96
mgd). (Table attached to Gingerich WDT 10/31/14, p. 2; USGS Regression Study, p. 61 (Table
11) and p. 66 (Table 12).)
202. Near the coast, Haʻipuaʻena Stream loses water and retains approximately 50% of
the expected habitat availability. (Haʻipuaʻena IFSAR § 4.3, p. 43.)
e. Instream values
203. The Hawaii Stream Assessment classifies the aquatic resources of Haʻipuaʻena as
“limited,” meaning very little native species were present. The presence of a terminal waterfall
has restricted most of the native species that lack climbing ability from inhabiting the stream.
Only the native ʻoʻopu alamoʻo (Lentipes concolor), ʻoʻopu nākea (Awaous guamensis), and
ʻōpae kalaʻole (Atyoida bisulcata) were observed in Haʻipuaʻena Stream. Haʻipuaʻena Stream
53
rates in the middle in comparison to other watersheds in Maui and statewide. DAR assigns
Haʻipuaʻena a total watershed rating of 8 out of 10, a total biological rating of 5 out of 10, and a
combined overall rating of 6 out of 10. Native species observed in the stream include:
Fish — Awaous guamensis and Lentipes concolor

Insects — Megalagrion blackburni, Megalagrion calliphya, Megalagrion
hawaiiense, Megalagrion pacificum, Megalagrion sp., and Telmatogen sp.
(Haʻipuaʻena IFSAR § 4.4, pp. 41, 45; DAR Report on Haʻipuaʻena Stream, Maui, Hawaiʻi,
October 2009, p. 6.).
204. The estimated natural (undiverted) median baseflow of Haʻipuaʻena Stream is
4.30 cfs (2.78 mgd). The amount of flow in Haʻipuaʻena Stream needed to achieve H90 is 2.80
205. The recreational resources of Haʻipuaʻena Stream were classified as “moderate”
by the Hawaii Stream Assessment’s regional recreational committee. The Hawaii Stream
Assessment identified opportunities for hunting, swimming, and scenic views related to
Haʻipuaʻena. Of the three, none was considered to be a high-quality experience. (Haʻipuaʻena
IFSAR § 5.0, p. 53.)

206. Riparian resources of Haʻipuaʻena Stream were not classified by the Hawaii
Stream Assessment. In Haʻipuaʻena, about 53% of the unit lies within the Koʻolau Forest
Reserve, and about 6% within the Waikamoi Preserve. Approximately 58% of Haʻipuaʻena is
classified as non-tidal palustrine wetlands occuring in the upper slopes of the hydrologic unit.
(Haʻipuaʻena IFSAR § 6.0, pp. 57-59.)

54
207. Haʻipuaʻena Stream is fed by lush native communities of Ohia forests and
Vegetation surrounding the lower reaches of Haʻipuaʻena Stream is predominately alien forests
that lie within the Koʻolau Forest Reserve. Of the three waterfalls located along Haʻipuaʻena
Stream, two are located in the middle reach and one is located in the lower reach that can be seen
from Hana Highway. Keopuka Rock, a State seabird sanctuary, can be seen from the shoreline of
the hydrologic unit. (Haʻipuaʻena IFSAR § 7.0, p. 65.)
v. Navigation
208. There are no navigation values present. (Haʻipuaʻena IFSAR § 8.0, p. 67.)
which is supplied with water from several sources including Haʻipuaʻena Stream. (Haʻipuaʻena
IFSAR § 9.0, p. 68.)
210. Haʻipuaʻena Stream appears on the 2006 List of Impaired Waters in Hawaii,
Clean Water Act § 303(d). While some data exist for Haʻipuaʻena Stream, there were not
sufficient data for decision-making; therefore, no decision was made pertaining to the attainment
of water quality standards or the applicable designated uses. Haʻipuaʻena Stream is classified as
Class lb inland waters from its headwaters to approximately 1,200 feet elevation, as the
surrounding land is in the conservation subzone “protective.” From there down to about 700 feet
elevation, Haʻipuaʻena Stream is classified as Class la inland waters because the stream lies in
the Koʻolau Forest Reserve. From there to the sea, it is classified as Class 2 inland waters.
55
Marine waters at the mouth of the Haʻipuaʻena hydrologic unit are Class AA waters.
(Haʻipuaʻena IFSAR § 10.0, pp. 72-74.)

211. The State Division of State Parks registered a diversion for the purpose of
providing non-potable waer to the comfort station at the Kaumahina State Wayside.
Approximately 5,000 to 8,000 gpd of water is diverted via a 2-in. pipe to a 10,000 gallon holding
tank. The DOH Safe Drinking Water Branch does not currently regulate any public water
systems in the Haipueena hydrologic unit. (Haʻipuaʻena IFSAR § 11.0, p. 75.)

rights
present in the Puohokamoa hydrologic unit. (Haʻipuaʻena IFSAR § 12.0, p. 92.)
f. Kuleana users
213. CWRM records for the hydrologic unit of Haipua‘ena indicate that there are a
total of five registered diversions (four EMI or MDWS, one by Hawaii Divisions of State Parks
for non-potable use at its comfort station in Kaumahina State Wayside). None of the diversions
were declared for taro cultivation or other domestic purposes. (Haipueena IFSAR § 12.0, p. 86.)
6. Punalau (6050)
214. The hydrologic unit of Punalau is located north of Haleakala, and it covers an area
of 1.2 square miles from the lower slopes of Haleakala at 2,558 feet elevation to the sea.
(Punalau IFSAR § 1.1, p. 1.)
56
215. The hydrologic unit contains Punalau Stream and Kōlea Stream. (Punalau IFSAR
§ 3.3, p. 27.)
216. Punalau Stream runs 3 miles in length, traversing northeast from its headwater
tributary Kōlea Stream at 2,050 feet elevation to the ocean. The 0.3 mile reach of Punalau
Stream below the Manual Luis Ditch gains groundwater flow. (Punalau IFSAR § 3.3, p. 27.)
b. Diversions
217. Kōlea Stream is diverted by the Spreckels Ditch and the Koolau/Wailoa Ditch.
The main Punalau Stream is diverted by the Manuel Lui Ditch. (Punalau IFSAR § 3.3, p. 28.)
c. Gaging stations
218. Two inactive USGS gaging stations were located in the hydrologic unit of
Punalau. Both gages are ditch gages that measure flow in the ditch and do not measure flow in
the stream.
A. Station 16529000 was located at Spreckels Ditch on tributary Kōlea
Stream. (Punalau IFSAR § 3.3, p. 28.)
B. Station 16535000 is located at about 1,880 feet elevation, where water
was diverted from Haʻipuaʻena Stream into tributary Kōlea Stream from 1938 to 1960 to
generate electricity. (Punalau IFSAR § 3.3, p. 28.)
219. According to USGS, the natural median baseflow at the middle reach of Punalau
Stream is 3.90 cfs (2.10 mgd); at the lower reach it is 4.50 cfs (2.42 mgd). (Table attached to
Gingerich WDT 10/31/14, p. 2; USGS Regression Study, p. 61 (Table 11) and p. 66 (Table 12).)
57
e. Instream values
220. For Punalau Stream, the Hawaii Stream Assessment classifies the aquatic
resources as “limited,” meaning very little or no native species were present. Only the native
ʻoʻopu nakea (Awaous guamensis) and ʻoʻopu nōpili (Sicyopterus stimpsoni) were observed in
Punalau Stream. While no native species were observed during the more recent surveys, the
ʻoʻopu nakea were seen in the upper and lower reaches and the ʻoʻopu nōpili were seen in the
middle reach of the stream in earlier surveys. Introduced species such as river prawns
(Macrobrachium lar) were observed in the lower reach. Punalau Stream rates average in
comparison to other watersheds in Maui and statewide. DAR assigns Punalau a total watershed
rating of 7 out of 10, a total biological rating of 5 out DAR assigns Haʻipuaʻena a total watershed
rating of 5 out of 10, a total biological rating of 5 out of 10, and a combined overall rating of 5
out of 10. Native species observed in the stream include:
Fish — Awaous guamensis and Sicyopterus stimpsoni

Insects — Megalagrion blackburni, M. hawaiiense and M. pacificum
(Punalau IFSAR § 4.2, pp. 37, 41; DAR Report on Punalau Stream, Maui, Hawaiʻi,
October 2009, pp. 5-6.).
221. The estimated natural (undiverted) median baseflow of Punalau Stream is 3.90 cfs
(2.52 mgd). The amount of flow in Punalau Stream needed to achieve H90 is 2.50 cfs (1.62 mgd).
(Table attached to Gingerich WDT 10/31/14, p. 2; Exh. HO-1.)
222. The recreational resources of Punalau Stream were classified as “limited” by the
did not identify any recreational opportunities. (Punalau IFSAR § 5.0, p. 47.)
58
223. Riparian resources of Punalau Stream were not classified by the Hawaii Stream
Assessment. Nearly 92% of the Punalau hydrologic unit lies within the Koʻolau Forest Reserve,
and about 1% within the Kaumahina State Wayside. Approximately 47% of Punalau is classified
as non-tidal palustrine wetlands occurring in the upper slopes of the hydrologic unit. (Punalau
IFSAR § 6.0, p. 54.)
224. Punalau Stream is fed by lush native communities of Ohia forests and forested
wetlands that dominate the upper slopes. In the intermediate and lower slopes, vegetation
surrounding the stream is mostly alien forests. Almost the entire hydrologic unit of Punalau lies
within the Koʻolau Forest Reserve, with the exception of the shoreline. Punalau Falls is located
near Hana Highway, and it is publicly accessible. Punalau Stream empties into Honomanū Bay,
where a number of coastal activities are enjoyed by the public in addition to being a popular surf
spot. Located at the west end of the hydrologic unit is Kaumahina State Wayside, which offers
great views of the northeast Maui coastline and the Keʻanae Peninsula. (Punalau IFSAR § 7.0, p.
59.)
v. Navigation
225. No navigation values are present. (Punalau IFSAR § 8.0, p. 61.)
which is supplied with water from several sources included Punalau Stream and tributary Kōlea
Stream. (Punalau IFSAR § 9.0, p. 62.)
59
227. Punalau Stream appears on the 2006 List of Impaired Waters in Hawaii, Clean
Water Act § 303(d). While some data exist for Punalau Stream, there were not sufficient data for
decision-making; therefore, no decision was made pertaining to the attainment of State of Hawaii
Water Quality Standards or the applicable designated uses. Punalau Stream is classified as Class
lb inland waters from its headwaters to approximately 1,200 feet elevation, as the surrounding
land is in the conservation subzone "protective", and it is part of the Koʻolau Forest Reserve.
From there down to about 300 feet elevation, Punalau Stream is classified as Class 1a inland
waters because the stream lies in the Koʻolau Forest Reserve. From there to the sea, it is
classified as Class 2 inland waters. Marine waters at the mouth of the Punalau hydrologic unit
are Class AA waters. (Punalau IFSAR § 10.0, pp. 65-66, 74.)

228. There are a total of three registered diversions. All three registered diversions are
owned by EMI for transport of water outside the hydrologic unit. The DOH Safe Drinking Water
Branch does not currently regulate any public water systems in the Punalau hydrologic unit.
(Punalau IFSAR § 11.0, p. 67.)

rights
present in the Punalau hydrologic unit. (Punalau IFSAR § 12.0, p. 86.)
60
f. Kuleana users
230. None of the registered diversions were declared for taro cultivation or other
domestic purposes. (Punalau IFSAR § 12.0, p. 86.)
7. Honomanū (6051)
231. The hydrologic unit of Honomanū covers an area of 5.6 square miles from the
upper slopes of Haleakala at about 8,700 feet elevation to the sea. (Honomanū IFSAR § 1.1, p.
1.)
232. Honomanū Stream is 8.7 miles in length, traversing northeast from its headwaters
at about 8,700 feet elevation. (Honomanū IFSAR § 1.1, p. 1.)
233. Honomanū Stream appears to be a gaining stream from the Spreckels Ditch and a
losing stream downstream from the ditch. Near the coast are two springs that contribute to
streamflow into the estuary. (Exh. C-90, p. 25; Honomanū IFSAR § 3.3, p. 31.)
b. Diversions
234. EMI operates diversions on Honomanū Stream at Spreckels Ditch, Lower Kula
Pipeline, and Center Ditch. (Honomanū IFSAR § 13.1, pp. 100-110, Figure 13-1; Exh. C-33.)
c. Gaging stations
235. Four inactive USGS stream gaging stations are located in the hydrologic unit of
Honomanū, two of which are long-term continuous-record gaging stations. (Honomanū IFSAR
at § 3.3, p. 28.)
Honomanū directly downstream of the Spreckels Ditch is 2.80 cfs (1.81 mgd); at the middle
61
reach it is 6.70 cfs (3.61 mgd); and at the lower reach it is 9.00 cfs (4.84 mgd). (Table attached to
e. Instream values
237. For Honomanū Stream, the Hawaii Stream Assessment classifies the aquatic
resources as limited, meaning very little native species were present. While the available
instream habitats were limited, a number of native stream animals were observed in Honomanū
Stream, including ʻoʻopu nākea (Awaous guamensis), ‘oʻopu akupa (Eleotris sandwicensis),
ʻoʻopu alamoʻo (Lentipes concolor), ʻōpae kalaʻole (Atyoida bisulcata), hīhīwai (Neritina
granosa), and hapawai (Neritina vespertina). During the more recent surveys, both freshwater
snail species and the ʻoʻopu akupa were observed near the stream mouth and the ʻoʻopu nākea
were seen in the lower and middle reaches (below diversions). The ʻoʻopu alamoʻo and ʻōpae
kalaʻole were observed in the upper reach (above diversions); although the ʻōpae kalaʻole had
been seen in the headwaters during earlier surveys. Cast net sampling of the estuary at
Honomanū resulted in catches of endemic aholehole (Kuhlia xenura), Iao (Atherinomorus
insularum), Kanda mullet (Valamugil engeli), and indigenous amaama (Mugil cephalus).
Honomanū Stream rates high in comparison to other watersheds in Maui and statewide. DAR
assigns Honomanū a total watershed rating of 8 out of 10, a total biological rating of 7 out of 10,
and a combined overall rating of 8 out of 10. Native species observed in the stream include:
Fish — Awaous guamensis, Eleotris sandwicensis, Kuhlia xenura, Lentipes

concolor, and Mugil cephalus
Insects — Anax junius, Anax sp., Megalagrion hawaiiense, Megalagrion sp., and
Telmatogen sp.
Snails — Neritina vespertina and Neritina granosa
62
(Honomanū IFSAR §§ 4.2, p. 42 and § 4.4, pp. 47, 48; Exh. C-143, p. 6.)
238. In the dry reaches, it is estimated that restoring 50 percent of the natural base flow
would produce at least 90 percent of the expected natural habitat. The estimated natural
(undiverted) median baseflow of Honomanū Stream is 2.80 cfs (1.81 mgd). The amount of flow
in Honomanū Stream needed to achieve H90 is 1.80 cfs (1.16 mgd). (Table attached to Gingerich
WDT 10/31/14, p. 2; Exh. HO-1.)
239. The recreational resources of Honomanū Stream were classified as “outstanding”
by the Hawaii Stream Assessment’s regional recreational committee. The HAS identified
opportunities for camping, hiking, fishing, hunting, swimming, and scenic views related to
Honomanū Stream. Of the six, only scenic views were considered to be a high-quality
experience. (Honomanū IFSAR § 5.0, p. 56.)

240. Riparian resources of Honomanū Stream were classified as “outstanding” by the
Hawaii Stream Assessment. About 45% of the hydrologic unit of Honomanū lies within the
Koʻolau Forest Reserve, 17% in the Waikamoi Preserve, and about 4% within the Haleakala
National Park. Approximately 59% of Honomanū is classified as non-tidal palustrine wetland
wetlands occurring in the upper slopes of the hydrologic unit. (Honomanū IFSAR § 6.0, pp. 60-
62.)
241. The headwaters of Honomanū Stream originate in Haleakala National Park where
vegetation is predominately native shrub lands with sparse alien grasses. In the intermediate
63
slopes of the hydrologic unit, Honomanū Stream flows through native communities of Ohia
forests and Uluhe shrub lands that lie within the Waikamoi Preserve and Koʻolau Forest Reserve.
The lower elevations are mostly alien forests of the Koʻolau Forest Reserve. A number of
waterfalls and plunge pools are located along the middle reach of Honomanfi Stream, which
provide great scenic spots for the public. The stream empties into Honomanū Bay, where a
number of coastal activities are enjoyed by the public in addition to being a popular surf spot.
(Honomanū IFSAR § 7.0, p. 69.)
v. Navigation
242. No navigation values are present. (Honomanū IFSAR § 8.0, p. 71.)
which is supplied with water from several sources including Honomanū and its tributaries.
244. Honomanū Stream appears on the 2006 List of Impaired Waters in Hawaii, Clean
Water Act § 303(d). While some data exist for Honomanū Stream, there were not sufficient data
for decision-making; therefore, no decision was made pertaining to the attainment of water
quality standards or the applicable designated uses. Honomanū Stream is classified as Class la
inland waters from its headwaters to the 6,200 feet elevation, and from 1,700 feet to 100 feet
elevation as parts of the stream lie in the Waikamoi Preserve (upper reaches) and the Koʻolau
Forest Reserve (lower reaches). Between the 6,200 feet and 1,700 feet altitudes, the stream is
classified as Class lb inland waters because the surrounding land is in the conservation subzone
“protective.” The stream reach near the ocean is classified as Class 2 inland waters. Marine
64
waters at the mouth of the hydrologic unit of Honomana are Class AA waters. (Honomanū
IFSAR § 10.0, pp. 76-78.)

245. There 8 registered diversions in Honomanū, of which five are EMI diversions and
one was registered by both EMI and MDWS. The two remaining diversions were registered by
Haleakala Ranch for the primary purpose of watering livestock (6,000 to 7,000 heads of cattle)
with occasional use for domestic purposes at two cabins on the property. (Honomanū IFSAR §
11.0, p. 80.)

rights
present in the Honomanū hydrologic unit. (Honomanū IFSAR § 12.0, p. 97.)
f. Kuleana users
247. CWRM records for the hydrologic unit of Honomanū indicate that there are a
total of 8 registered diversions. None of the diversions were declared for taro cultivation.
8. Nuaʻailua (6052)
248. The hydrologic unit of Nuaʻailua covers an area of 1.6 square miles from the
lower slopes of Haleakala at 2,400 feet elevation to the sea. (Nuaʻailua IFSAR § 1.1, p. 1.)
249. Nuaʻailua Stream is 3.2 miles in length, traversing north from its headwaters near
the 2,250 feet altitude to the ocean. (Nuaʻailua IFSAR § 1.1, p. 1.)
65
b. Diversions
250. EMI operates diversions on Nuaʻailua Stream at Spreckels Ditch. (Nuaʻailua
IFSAR § 13.1, pp. 95-96, Table 13-2; Exh. C-33.)
c. Gaging stations
251. There are no stream gaging stations within the hydrologic unit. (Nuaʻailua IFSAR
§ 3.3, p. 29.)
252. According to USGS, the natural median baseflow at the upper reach of Nuaʻailua
Stream directly downstream of the Spreckels Ditch is 0.28 cfs (0.18 mgd); at the middle reach it
is 2.50 cfs (1.35 mgd); and at the lower reach it is 7.40 cfs (3.98 mgd). (Table attached to
e. Instream values
253. For Nuaʻailua Stream, the Hawaii Stream Assessment classifies the aquatic
resources as "limited", meaning very little native species were present. While the available
instream habitats were limited, a number of native stream animals were observed in Nuaʻailua
Stream, including: ʻoʻopu nākea (Awaous guamensis), ‘oʻopu nōpili (Sicyopterus stimpsoni),
ʻoʻopu akupa (Eleotris sandwicensis), ʻoʻopu alamoʻo (Lentipes concolor), ʻōpae kalaʻole
(Atyoida bisulcata), hīhīwai (Neritina granosa), and hapawai (Neritina vespertina). During the
more recent surveys, almost all these stream animals were observed in the lower and middle
reaches (below diversions). The 'ōpae kalaʻole had been seen in the upper reach during earlier
surveys. Cast net sampling of the stream mouth at Nuaʻailua resulted in catches of the endemic
Hawaiian surf fish (Iso hawaiiensis) and aholehole (Kuhlia xenura). Although no flow was
66
observed from the stream to the small coastal embayment, diverted base flow in Nuaʻailua is
about 90 percent of the natural base flow conditions, which would provide close to 100 percent
of the natural habitat for all species. Nuaʻailua Stream rates high in comparison to other
watersheds in Maui and statewide. DAR assigns Nuaʻailua a total watershed rating of 7 out of
10, a total biological rating of 7 out of 10, and a combined overall rating of 8 out of 10. Native
species observed in the stream include:
Fish — Awaous guamensis, Eleotris sandwicensis, Gobiid sp. Kuhlia xenura,

Lentipes concolor, and Sicyopterus stimpsoni
Insects —Anaxjunius, Anax sp., and Megalagrion sp.
Mollusks — Neritina vespertina and Neritina granosa
(Nuaʻailua IFSAR §§ 4.2, p. 39 and § 4.4, p. 43; Exh. C-146, p. 5.)
254. The estimated natural (undiverted) median baseflow of Nuaʻailua Stream is 0.28
cfs (0.18 mgd). The amount of flow in Nuaʻailua Stream needed to achieve Hgo is 0.18 cfs (0.12
mgd). (Table attached to Gingerich WDT 10/31/14, p. 2; Exh. HO-1.)
255. The recreational resources of Nuaʻailua Stream were classified as “substantial” by
the Hawaii Stream Assessment’s regional recreational committee. The Hawaii Stream
Assessment identified opportunities for hiking, fishing, and scenic views related to Nuaʻailua
Stream. Of the three, only fishing was considered to be a high-quality experience. (Nuaʻailua
IFSAR § 5.0, p. 50.)

256. Riparian resources of Nuaʻailua Stream were not classified by the Hawaii Stream
Assessment. In Nuaʻailua, nearly 90% of the unit lies within the Koʻolau Forest Reserve.
67
Approximately 42% of Nuaʻailua is classified as non-tidal palustrine wetlands occurring in the
upper slopes of the hydrologic unit. (Nuaʻailua IFSAR § 6.0, pp. 54-55.)
257. Nuaʻailua Stream is fed by lush native communities of Ohia forests that dominate
the upper slopes. In the intermediate and lower slopes, vegetation surrounding the stream is
mostly alien forests. Almost the entire hydrologic unit of Nuaʻailua lies within the Koʻolau
Forest Reserve, with the exception of the shoreline. Two waterfalls are located in the upper
reaches of Nuaʻailua Stream, which are not visible from Hana Highway but do provide great
scenic spots for the occasional adventurer. The stream empties into Nuaʻailua Bay, where a
number of coastal activities are enjoyed by the locals as well as the public. Located in the west
end of the hydrologic unit is Kapapa Point and the east end is Keʻanae Point, both of which offer
views of Nuaʻailua Bay and the islet Mokuholua. (Nuaʻailua IFSAR § 7.0, p. 62.)
v. Navigation
258. No navigation values are present. (Nuaʻailua IFSAR § 8.0, p. 64.)
which is supplied with water from several sources including Nuaʻailua Stream. (Nuaʻailua
IFSAR § 9.0, p. 65.)
260. Nuaʻailua Stream does not appear on the 2006 List of Impaired Waters in
Hawaiʻi, Clean Water Act § 303(d). While some data exist for Nuaʻailua Stream, there were not
of water quality standards or the applicable designated uses. Nuaʻailua Stream is classified as
68
Class lb inland waters from its headwaters to approximately 1,600 feet elevation, as the
surrounding land is in the conservation subzone “protective.” From there down to the sea,
Nuaʻailua Stream is classified as Class 2 inland waters. Marine waters at the mouth of the
Nuaʻailua hydrologic unit are Class AA waters. (Nuaʻailua IFSAR § 10.0, pp. 69-70.)

261. Two diversions divert water for domestic or irrigation purposes (one for EMI, and
the other for Maui Family YMCA for the purpose of irrigating taro and flowers; however, this
diversion is inactive). The DOH Safe Drinking Water Branch does not currently regulate any
public water systems in the Nuaʻailua hydrologic unit. (Nuaʻailua IFSAR § 11.0, p. 72.)

rights
present in the Nuaʻailua hydrologic unit. (Nuaʻailua IFSAR § 12.0, p. 90.)
f. Kuleana users
263. CWRM records for the hydrologic unit of Nuaʻailua indicate that there are no
diversions declared for taro cultivation or other domestic purposes. (Nuaʻailua IFSAR § 12.0, p.
84.)
9. Piʻinaʻau (6053)
264. The hydrologic unit of Piʻinaʻau is located on the northeast slope of Haleakala. It
covers an area of 22 square miles from the summit of Haleakala at 10,000 feet to the sea.
(Piʻinaʻau IFSAR § 1.0, p. 1.)
69
265. Piʻinaʻau Stream is 13.1 miles in length, traversing in a northeasterly direction
from its headwaters originating in the Waikamoi Preserve to Waialohe Pond before entering the
ocean. A tributary to Piʻinaʻau Stream is Palauhulu Stream, which is 4.8 miles in length.
Palauhulu Stream is itself fed by Hauoli Wahine Gulch and Kano Stream. It is fed perennially by
the Koʻolau Forest Reserve and flows through Keahu Falls, Waiokuna Falls, and the Waiokuna
Pond before joining with Piʻinaʻau Stream. (Piʻinaʻau IFSAR § 1.0, p. 1 and § 3.0, p. 29.)
b. Diversions
266. EMI diverts the Piʻinaʻau and Palauhulu Streams at the Koʻolau Ditch. (Piʻinaʻau
IFSAR § 13.0, p. 97; Exh. C-33.)
c. Gaging stations
267. There is an inactive USGS gaging station at the Koʻolau Ditch near Piʻinaʻau
Stream, Station 16523000. There is an inactive USGS continuous-record gaging stations on
Palauhulu Stream upstream of the confluence with Piʻinaʻau Stream, Station 16522000.
(Piʻinaʻau IFSAR § 13.0, pp. 112, 113.)
268. USGS did not make estimates of flow-duration statistics for natural (undiverted)
streamflow for Piʻinaʻau Stream because no flow data was available and the regression equations
were not applicable to this intermittent stream. Furthermore, all three of the basin characteristics
that were used in the regression equations fall outside the range of values used to develop the
equations, thus rendering any estimate unreliable. Actual measurements for this stream are
unavailable due to the complex geomorphology of the area and a major landslide in 2001.
(USGS Regression Study, p. 58, 63; Gingerich, WDT 10/31/14, Table attached thereto, p. 2;
Exh. C-85, p. 30.)
70
269. Palauhulu Stream loses water in its middle reach. The average flow of Plunkett
Spring at the middle reach below Koʻolau Ditch is 2.7 cfs, but the stream goes dry above Store
Spring due to infiltration losses, so the effects of natural flow addition are unknown. (Piʻinaʻau
IFSAR, §3.0, p. 32 (Table 3-1); Exh. C-85, p. 30.)
270. According to USGS, the natural median baseflow at Hauoli Wahine Stream, the
western tributary of Palauhulu Stream, before the Koʻolau Ditch (station HWU), is 0.93 cfs (0.50
mgd). At Kano Stream, the eastern tributary of Palauhulu Stream, before the Koʻolau Ditch
(station KoU), the natural median baseflow is 2.50 cfs (1.35 mgd). At the middle reach of
Palauhulu Stream, below Plunkett Spring and above Store Spring (station PhM), the natural
median baseflow is 9.30 cfs (15.77 mgd). At the lower reach, below Store Spring (station 5220),
the natural median baseflow is 11.00 cfs (5.92 mgd). (Exh. C-85, p. 36; USGS Regression Study,
p. 61 (Table 11).)
e. Instream values
271. For Piʻinaʻau Stream, the Hawaii Stream Assessment classifies the aquatic
resources as outstanding. Piʻinaʻau was noted for the presence of ʻoʻopu alamoʻo (L. concolor),
ʻoʻopu nākea (A. stamineus), ʻoʻopu nōpili (S. stimpsoni), and hīhīwai (N. granosa), along with
one other species from its defined Native Species Group Two. Piʻinaʻau Stream and Palauhulu
Streams feed Waialohe Pond, which provides habitat for estuarine animals. The size of the
watershed and the diversity of native stream animals present makes Piʻinaʻau Stream rate high in
comparison to other watersheds in Maui and statewide. DAR assigns Piʻinaʻau a total watershed
rating of 8 out of 10, a total biological rating of 8 out of 10, and a combined overall rating of 9
out of 10. Native species observed in the stream include:
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Fish — Awaous guamensis, Eleotris sandwicensis, Kuhlia sp. Lentipes concolor,
Sicyopterus stimpsoni, and Stenogobius hawaiiensis
Crustaceans –Atyoida bisulcata and Macrobrachium grandimanus
Mollusks – Ferrissia sharpi, Neritina vespertina and Neritina granosa
(Piʻinaʻau IFSAR § 4.0, p. 36; Exh. C-142, pp. 1-2.)
272. The estimated natural (undiverted) median baseflow of Palauhulu Stream is 3.40
cfs (2.20 mgd). The amount of flow in Palauhulu Stream needed to achieve H90 is 2.20 cfs (1.42
mgd). The estimated natural (undiverted) median baseflow of Piʻinaʻau Stream is unknown, and
therefore, the amount of flow in the stream needed to achieve H90 is also unknown. (Table
attached to Gingerich WDT 10/31/14, p. 2; Exh. HO-1.)
273. The recreational resources of Piʻinaʻau Stream were classified as outstanding by
Assessment identified opportunities for hiking, fishing, swimming, hunting, nature study, and
scenic views related to Piʻinaʻau Stream. Of the six, five were considered to be high-quality
experiences. CWRM identified the following activities known to occur or observed at or near
Piʻinaʻau: pole and line fishing, spear fishing, throw netting, opihi picking, gill netting, and some
specialized fisheries. (Piʻinaʻau IFSAR § 5.0, p. 43.)

274. Riparian resources of Piinaʻau Stream were classified as outstanding by the
Hawaii Stream Assessment. In Piʻinaʻau, there are three large management areas—Haleakala
National park, Koʻolau Forest Preserve, and Waikamoi Preserve—which comprise over 85% of
the hydrologic unit. Nearly 34% of Piʻinaʻau is classified as seasonal, non-tidal palustrine
wetlands occurring in the headwaters of the hydrologic unit. (Piʻinaʻau IFSAR § 6.0, pp. 48, 50.)
72
275. The headwaters of Piʻinaʻau Stream originate in the lush tropical forests of the
Waikamoi Preserve. Along with its tributary Palauhulu Stream, the waters flow northeasterly
through miles of evergreen forests, most of which is part of the Koʻolau Forest Reserve. The
streams are bordered by the steep sides of the Keʻanae Valley walls, altogether creating a
picturesque view. A number of waterfalls are located along the streams, one on Piʻinaʻau and ten
on Palauhulu, most of which are immediately followed by a plunge pool. Waiokuna and Keaku
Falls are among the waterfalls located in the more accessible lower reaches of Palauhulu Stream.
A diverse collection of the native plants found in the Keʻanae Arboretum can be viewed in the
lower reaches of Piʻinaʻau Stream. Piʻinaʻau and its tributary join near the coast and empty into
the waters surrounding Keʻanae Peninsula. (Piina'au IFSAR § 7.0, p. 55.)
v. Navigation
276. No navigation values are present. (Piʻinaʻau IFSAR § 8.0, p. 57.)
277. No instream hydropower generation occurs on Piʻinaʻau Stream. (Piʻinaʻau
IFSAR § 9.0, p. 58.)
278. Piʻinaʻau Stream and Palauhulu Stream do not appear on the 2006 List of
Impaired Waters in Hawaii, Clean Water Act § 303(d). While some data exist for Piʻinaʻau
Stream (and its “entire network”), there were not sufficient data for decision-making. Piʻinaʻau
Stream is classified as Class 2 from the coast to approximately 1,550 feet elevation. Palauhulu
Stream is Class 2 from the coast to approximately 960 feet elevation. Above those elevations,
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both streams are Class 1. Marine waters at the mouth of the hydrologic unit of the entire
Piʻinaʻau hydrologic unit are Class AA waters. (Piʻinaʻau IFSAR § 10.0, p. 60.)

279. There are a total of 14 registered diversions, of which 8 are non-EMI. Of the 8,
four were declared for domestic, in part, with a total of five service connections. All 8 diversions
are also utilized for irrigation of various crops and livestock, including the cultivation of taro.
The DOH Safe Drinking Water Branch does not currently regulate any public water systems in
the Piʻinaʻau hydrologic unit. (Piʻinaʻau IFSAR § 11.0, p. 62.)

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Fishpond Study for the Islands of Hawaii, Maui, Lanai, and Kauai, the Waialohe fishponds still
exists at the mouth of Piʻinaʻau Stream. (Piʻinaʻau IFSAR § 12.0, p. 74.)
f. Kuleana users
281. CWRM records for the hydrologic unit of Piʻinaʻau indicate that there are a total
of 14 registered diversions. Six of the diversions were declared for taro cultivation or other
domestic purposes. (Piʻinaʻau IFSAR § 12.0, p. 72.)
282. In Table No. 1 at page 10 of Nā Moku’s Opening Brief, Nā Moku claims 29.695
acres of cultivable area in Keʻanae and a total estimated water need for taro (in addition to 64%
base flow) of 2.97 - 8.91 mgd. This is said to be based on the Nā Moku TMK Spreadsheet and
Exhibit A-140, which is a tax map with highlighted areas referencing certain parcels in Keʻanae.
283. The 29.695 acre estimate of cultivable area is the simple sum of the aggregate
acreages for all the TMK parcels listed on A-137 from the 1-1-03 plat. No testimony or other
74
information has been offered to quantify what percentage of each of these parcels actually
contain loʻi as opposed to being house lots, constituting open space or being in other uses.
284. Palauhulu Stream is the sole water source for the taro cultivated in Keʻanae. There
are a few loʻi in the Keʻanae Arboretum on land owned by the State of Hawaii that are irrigated
directly from Piʻinaʻau Stream above the elevation of the flume intake on Palauhulu Stream that
serves Keʻanae. No person has come forward to assert a claim in this proceeding of appurtenant
rights to use water from Piʻinaʻau Stream. (Hew, WDT 1/27/15, at 129.)
285. Exhibit C-108 is a copy of an excerpt from a report published by the USGS in
2007 of a study conducted in 2006 entitled, "Water Use in Wetland Kalo Cultivation in Hawaii."
Keʻanae was one of the loi complexes studied on Maui. As shown on in Figure 35 on page 57 of
that report (the “USGS 2007 Taro Water Report”), the entire Keʻanae complex was 10.53 acres
when studied.
286. Exhibits C-109 and 110 are copies of aerial photographs taken of Keʻanae on
January 5, 2015. The configuration of the loi shown in these recent photographs is very similar to
the schematic of the entire 10.53 acre Keʻanae loʻi system contained in Figure 35 of the USGS
2007 Taro Water Report.
287. Application of the 130,000 to 150,000 gad irrigation requirement for taro from the
Nā Wai ʻEhā case to the 10.53 acre Keʻanae loʻi complex results in a taro water need of from
1.37 to 1.58 mgd. This is less than half of the current IIFS of 5.50 cfs (3.56 mgd) for Palauhulu
Stream.
288. It appears from the evidence submitted in this proceeding that there is generally
enough water collected from the flume intake on Palauhulu Stream above Keʻanae to meet the
needs of the Keʻanae taro farmers. While there was some testimony regarding shortages of water
75
during low flow conditions, there was also testimony indicating that there has been enough water
to recently reopen patches that had been fallow. (Clark, Tr., 3/10/15, p. 126, 1. 15 to p. 131, 1.
12; Exh. A-168).
289. Since at least September 15, 2010, EMI has been releasing water into Palauhulu
Stream from the Koʻolau Ditch, but the water is lost in the leaky sections of the streambed
between the release point and the origin of Store Spring, which is the source of the water in
Palauhulu Stream that supplies the Keʻanae loʻi complex. This was documented in a site visit
that took place on September 15, 2010 attended by CWRM staff, Isaac and Gladys Kanoa, and
EMI personnel. Exhibits C-111 and C-112 are photos taken during that site visit showing water
being released just below the Koʻolau Ditch. The water being released constituted the entire flow
of the stream on that date, and the sluice gate has remained open to the same setting ever since.
Exhibit C-113 is a photo taken during that site visit of the last of several sinkholes in the
streambed between Koʻolau Ditch and Store Spring. Exhibit C-114 is a copy taken during that
site visit of the source of Store Spring. (Hew, WDT 1/27/15, l. 27.)
290. As a result of the loss into the streambed of the entire base flow of Palauhulu
Stream between the Koʻolau Ditch and Store Spring, there is nothing more that can be done to
increase the availability of water in the lower reaches during periods of low flows. At the current
sluice gate setting, all of the low flows are already being released, but they do not reach Store
Spring. Increasing the IIFS will not produce any more water in Palauhulu Stream at the flume
intake to Keʻanae during periods of low flows. (Hew, WDT 1/27/15, 1. 27.)
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10. Ohia (6054)
291. The hydrologic unit of Ohia is located north of Haleakala. It covers a small
drainage area of 0.3 square miles from the 410 feet altitude to the sea. (Ohia IFSAR § 1.1 at 1.)
292. Ohia Stream is 0.6 miles in length, traversing north from its headwaters at Ohia
Spring near the Hana Highway at 230 feet elevation to the ocean. (Ohia IFSAR § 1.1 at 1.)
b. Diversions
293. Ohia Stream is not diverted by any major surface water diversion system. (Ohia
IFSAR § 3.2 at 26; Hew, WDT, 2/10/15, at 12.)
c. Gaging stations
294. There are no stream gaging stations within the Ohia hydrologic unit. (Ohia IFSAR
§ 3.3 at 26.)
295. According to USGS, the natural median baseflow in the lower reach of Ohia
Stream is 4.70 cfs (3.04 mgd). (Table attached to Gingerich WDT 10/31/14, p. 2; USGS
Regression Study, p. 61 (Table 11).)
e. Instream values
296. The Hawaii Stream Assessment did not assess Ohia Stream. Native ʻoʻopu
alamoʻo (Lentipes concolor), ʻōpae kala'ole (Atyoida bisulcata), and hīhīwai (Neritina granosa)
were observed in Ohia Stream. During the more recent surveys, the ʻoʻopu alamoʻo and ʻōpae
kaleole were observed in the middle reach. Introduced species such as guppies (Poecilia
reticulata) and river prawns (Macrobrachium lar) were observed in the stream as well. The
77
poeciliid fishes dwell in the deep pools created above diversion structures and are known to
transmit parasites to native fishes. No insect survey was conducted in Ohia Stream. DAR assigns
Ohia a total watershed rating of 4 out of 10, a total biological rating of 5 out of 10, and a
Fish — Lentipes concolor

Mollusks — Neritina granosa
(Ohia IFSAR § 4.0, pp. 34, 37; DAR Report on Ohia Stream, Maui, Hawaii, October 2009, p. 6.)
297. The estimated natural (undiverted) median baseflow of Ohia Stream is 4.70 cfs
(3.04 mgd). The amount of flow in Ohia Stream needed to achieve H90 is 3.00 cfs (1.94 mgd).
298. The recreational resources of Ohia Stream were classified as "substantial" by the
Hawaii Stream Assessment's regional recreational committee. The HSA identified opportunities
for fishing and scenic views related to Ohia Stream. Of the two, only scenic views was
considered to be a high-quality experience. (Ohia IFSAR § 5.0, p. 43.)

299. Riparian resources of Ohia Stream were not classified by the Hawaii Stream
Assessment. About 2% of the hydrologic unit lies within the Pauwalu Point Wildlife Sanctuary.
There are no palustrine wetlands in the Ohia hydrologic unit. The density of threatened and
endangered plant species is low in the entire unit. (Ohia IFSAR § 6.0, pp. 46, 47, 48.)
300. Ohia Stream is only 0.6 miles in length that is fed by Ohia Spring near Hana
Highway. The stream is surrounded by mainly alien forests with scattered native Ohia forests
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and Uluhe shrub lands. The hydrologic unit of Ohia does not lie within any forest reserve or
preserve. The east end of the hydrologic unit is Pauwlau Point, which offers great views of the
Hahaha Bay, and two islets of the Mokumana State Seabird Sanctuary. (Ohia IFSAR § 7.0, p.
51.)
v. Navigation
301. There are no navigation values present. (Ohia IFSAR § 8.0, p. 53.)
302. Instream hydropower generation does not occur on Ohia Stream. (Ohia IFSAR §
9.0, p. 54.)
303. Ohia Stream is a newly listed stream on the 2006 List of Impaired Waters in
Hawaii, Clean Water Act § 303(d). Data indicated that turbidity, total nitrogen, total
phosophorus, nitrite and nitrate nitrogen exist as visual listing from 2001 to 2004. Trash was
recorded as one of the other pollutants in the stream. According to the available data, Ohia
Stream is listed as category 5 as having one or more designated use non-attainments or water
quality impairment. It is also a low priority stream for initiating TDML development. Ohia
Stream is classified as Class 2 inland waters in which the stream is protected for uses such as
recreational purposes, support of aquatic life, and agricultural water supplies. It should be noted
that the conservation subzone map utilized for this interpretation is general and elevations are not
exact. It should also be noted that there is no direct relationship between elevation and attainment
of water quality standards. Marine waters at the mouth of the hydrologic unit of Ohia are Class
AA waters. (Ohia IFSAR § 10.0, pp. 57, 58.)
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304. There is only one registered diversion on Ohia stream by Hokoana BK, which
diverts water for the purpose of irrigating 2.09 acres of taro, along with domestic and
landscaping uses for a house on the property. The DOH Safe Drinking Water Branch does not
currently regulate any public water systems in the hydrologic unit of Ohia. (Ohia IFSAR § 11.0,
p. 60.)

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present in the hydrologic unit of Ohia. (Ohia IFSAR § 12.0, p. 78.)
f. Kuleana users
306. CWRM records for the hydrologic unit of Ohia indicate that there is only one
registered diversion for 2.09 acres of taro cultivation from an unnamed/unmapped spring mauka
of Hana Highway via an auwai. (Ohia IFSAR § 13.1, p. 82-83.)
11. Waiokamilo (6055)
307. The hydrologic unit of Waiokamilo is located on the northeast slope of Haleakala.
It covers an area of 2.45 square miles from the slopes of Haleakala at 4,891 feet elevation to the
sea. (Waiokamilo IFSAR § 1.0, p. 1.)
308. The hydrologic unit contains Waiokamilo Stream and its tributary, Kualani
(Hamau) Stream. (Waiokamilo IFSAR § 1.0, p. 1.)
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309. Waiokamilo Stream is 4.4 miles in length, traversing in a northeasterly direction
from its headwaters originating in the Koʻolau Forest Reserve to Waiokamilo Falls before
entering the ocean. (Waiokamilo IFSAR § 1.0, p. 1.)
b. Diversions
310. EMI ceased all diversions within the Waiokamilo hydrologic unit after the Board
of Land and Natural Resources ruled in March 2007 that EMI should release 6 mgd from
Waiokamilo Stream. (Hew, WDT, 12/30/14, at 133; Hew, WDT, 1/27/15, at 135; Exh. C-83.)
c. Gaging stations
311. There is no USGS continuous-record stream gaging station in the hydrologic unit
of Waiokamilo. (Waiokamilo IFSAR § 3.0, p. 29.)
312. Waiokamilo Stream is generally a losing stream. The stream is dry immediately
downstream of Koʻolau Ditch. The stream then gains about 5.87 cfs (3.80 mgd) from Akeke
(Banana) Spring. Thereafter, the stream loses flow to ground water, minor diversions, and a
known losing stretch near Dams 2 and 3. (Exh. C-85, p. 40.)
313. According to USGS, the natural median baseflow in the upper reach of
Waiokamilo Stream directly downstream of the Koʻolau Ditch is 3.90 cfs (2.10 mgd); at the
middle reach it is 6.10 cfs (3.28 mgd); and at the lower reach it is 8.70 cfs (4.68 mgd). (Table
attached to Gingerich WDT 10/31/14, p. 2; USGS Regression Study, p. 61 (Table 11).)
e. Instream values
314. The Hawaii Stream Assessment classifies the aquatic resources of Waiokamilo
Stream as “unknown.” Waiokamilo Stream rates average in comparison to other watersheds in
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Maui and statewide. DAR assigns Waiokamilo a total watershed rating of 7 out of 10, a total
biological rating of 3 out of 10, and a combined overall rating of 5 out of 10. Native species
observed in the stream include:
Fish — Awaous guamensis

Mollusks — No native mollusks
(Waiokamilo IFSAR § 4.2, p. 42; DAR Report on Waiokamilo Stream, Maui, Hawaiʻi, June 2008,
pp. 1-2.)
315. The estimated natural (undiverted) median baseflow of Waiokamilo Stream is
3.90 cfs (2.52 mgd). The amount of flow in Waiokamilo Stream needed to achieve Hgo is 2.50
316. The recreational resources of Waiokamilo Stream were classified as outstanding
by the Hawaii Stream Assessment’s regional recreational committee. The Hawaii Stream
Assessment identified opportunities for fishing, hunting, swimming, and scenic views related to
Waiokamilo Stream. Three were considered high-quality experiences (hunting and scenic view,
air and ocean). (Waiokamilo IFSAR § 5.0, p. 40.)

317. Riparian resources of Waiokamilo Stream were not classified by the Hawaii
Stream Assessment. Nearly 75% of the hydrologic unit of Waiokamilo falls within the Koʻolau
Forest Reserve. Nearly 46% of Waiokamilo is classified as seasonal, non-tidal palustrine
wetlands occurring in the headwaters of the hydrologic unit. (Waiokamilo IFSAR § 6.0, pp. 44-
46.)
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318. The headwaters of Waiokamilo Stream originate in the lush tropical forests of the
Koʻolau Forest Reserve. Along with its tributary Kualani Stream, they flow northeasterly
through the evergreen forests that cover a majority of the drainage basin. Of the two waterfalls
along Waiokamilo Stream, Waiokilo Falls is located near the coast. Wailua Valley State
Wayside Lookout is located at about 430 ft elevation and provides a picturesque view of the
upper basin as well as the lower basin where the stream empties into the ocean. (Waiokamilo
IFSAR § 7.0, p. 52.)
v. Navigation
319. No navigation values are present. (Waiokamilo IFSAR § 8.0, p. 54.)
320. No instream hydropower generation occurs on Waiokamilo Stream. (Waiokamilo
IFSAR § 9.0, p. 55.)
321. Waiokamilo Stream and Kualani Stream do not appear on the 2006 List of
Impaired Waters in Hawaii, Clean Water Act § 303(d). While some data exist for Waiokamilo
Stream (and its "entire network"), there were not sufficient data for decision-making.
Waiokamilo Stream is Class 2 from the coast to approximately 1,550 feet elevation. Above that
elevation, it is Class 1. Kualani Stream is Class 2. Marine waters at the mouth of the hydrologic
unit of Waiokamilo are Class AA waters. (Waiokamilo IFSAR § 10.0, p. 57.)

322. There are a total of 19 registered diversions on Waiokamilo Stream, of which 15
are non-EMI. Eleven diversions divert water for domestic or irrigation purposes, in part, with a
83
total of eight service connections. Fifteen diversions are utilized for irrigation of various crops
and livestock, including the cultivation of taro. (Waiokamilo IFSAR § 11.0, p. 59.)

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Fishpond Study for the Islands of Hawaii, Maui, Lanai, and Kauai, the Puu Polu fishpond exists
towards the northern portion of the hydrologic unit near the ocean. (Waiokamilo IFSAR § 12.0,
p. 69.)
f. Kuleana users
324. CWRM records for the hydrologic unit of Waiokamilo indicate that there are a
total of 19 registered diversions, of which 11 were declared for taro cultivation. (Waiokamilo
IFSAR § 12.0, p. 67.)
325. In Table No. 1 at page 10 of Nā Moku’s Opening Brief, Nā Moku claims 90.992
acres of cultivable area and a total estimated water need for taro (in addition to 64% base flow)
of 9.1 — 27.3 mgd in “Wailua.” This is an area that encompasses two separate hydrologic units,
Waiokamilo and Wailuanui. This is said to be based on the Nā Moku TMK Spreadsheet and
Exhibit A-142, which is a combined set of three tax maps (plats 1-1-04, 05 and 06) with
highlighted areas referencing certain parcels in Wailuanui.
326. The 90.992 acres for which Nā Moku claimed a need for water for taro was
arrived at by simply adding the total acreage of TMK parcels listed on the Nā Moku TMK
Spreadsheet within the 1-1-04 plat, the 1-1-05 plat and the 1-1-06 plat without taking into
account what portion of those parcels have ever been or are currently cultivated with taro. There
84
was also no breakdown provided of which of these parcels are claimed to be served by
Waiokamilo Stream and which are claimed to be served by Wailuanui Stream.
327. To the extent Nā Moku is claiming that these parcels have appurtenant or riparian
rights to receive water from Waiokamilo Stream and Kualani Stream, these streams are not being
diverted by EMI. EMI has provided testimony and photographic evidence that, following the
BLNR’s 2007 ruling, EMI sealed all of its diversion works and structures that previously
diverted water from this hydrologic unit into the Koʻolau Ditch. This has also been confirmed by
CWRM staff following a series of field investigations. (Hew, WDT 1/27/15, ¶ 35; Hew, Tr.,
3/17/15, p. 128, 1. 7 to p. 129, 1. 10; Exh. C-52, pp. 56-67; Exh. C-147, pp. 84-96.)
328. Inasmuch as EMI has agreed to the setting and implementation of an IFS that
would preclude EMI from diverting any water from the entirety of the hydrologic unit of
Waiokamilo, it is unnecessary to make any more specific findings, individually or in the
aggregate, regarding the water rights or needs of the farmers who irrigate their taro and other
crops from Waiokamilo Stream and Kualani Stream.
12. Wailuanui (6056)
329. The hydrologic unit of Wailuanui is located on the northeast slope of Haleakala. It
covers an area of 6 square miles from the upper slopes of Haleakala at 8,891 feet elevation to the
sea. (Wailuanui IFSAR § 1.0 at 1.)
330. The hydrologic unit contains Wailuanui Stream and its two main tributaries, West
Wailuanui and East Wailuanui Streams. (IFSAR § 1.0, p. 1)
85
331. Wailuanui Stream is 6.4 miles in length with two main tributaries, West
Wailuanui and East Wailuanui. Wailuanui Stream is also known as Waikani stream. (Wailuanui
IFSAR § 1.0, p. 1; Hew, WDT, 2/10/15, p. 1.)
b. Diversions
332. EMI operates diversions on Wailuanui Stream and it tributaries at the Koʻolau
Ditch. (Wailuanui IFSAR § 13.0, p. 77.)
c. Gaging stations
333. Three inactive USGS continuous-record stream gaging stations are located along
Wailuanui Stream and its tributaries. (Wailuanui IFSAR § 3.0, p. 28.)
A. Station 16521000 is located at 620 feet elevation in Wailuanui Stream, and
was active from1932 to 1936 and 1939 to1947. (Wailuanui IFSAR § 3.0, pp. 27-28 (Table 3-1).)
B. Station 16519000 is at 1,268 feet elevation in the lower reach of West
Wailuanui Stream, and was active from 1914 to 1917 and 1922 to 1958. (Wailuanui IFSAR §
3.0, pp. 27-28 (Table 3-2).)
C. Station 16520000 is at 1,287 feet elevation in the lower reach of East
Wailuanui Stream, and was active from 1915 to 1917 and 1923 to 1957. (Wailuanui IFSAR §
3.0, pp. 27-28, (Table 3-3).)
334. According to USGS, the natural median baseflow at the upper reach of West
Wailuanui Stream directly downstream of Koʻolau Ditch is 2.50 cfs (1.35 mgd). At the upper
reach of East Wailuanui Stream directly downstream of Koʻolau Ditch the natural median
baseflow is 2.00 cfs (1.08 mgd). At the middle reach, below the confluence of West and East
Wailuanui Streams and above Waikani Falls, the median baseflow is 6.10 cfs (3.28 mgd). (Table
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attached to Gingerich WDT 10/31/14, p. 2; USGS Regression Study, p. 60 (Table 11) and p. 65
(Table 12).)
335. Wailuanui Stream is gaining flow from the lower reaches of its tributaries down
to the coast. (Exh. C-85, p. 51.)
e. Instream values
336. The Hawaii Stream Assessment classifies the aquatic resources of Wailuanui
Stream as outstanding. Wailuanui Stream has a combination of large watershed size, higher
biodiversity protection, high native species diversity and low alien species population. The ditch
diversions create disconnected deep pools, restricting the movement of adult animals and
standing postlarvae recruits at the stream mouth. Wailuanui Stream rates highly in comparison to
other watersheds in Maui and statewide. DAR assigns Wailuanui a total watershed rating of 7 out
of 10, a total biological rating of 8 out of 10, and a combined overall rating of 8 out of 10. Native
Fish — Awaous guamensis, Eleotris sandwicensis, Kuhlia sp., Lentipes concolor,

and Sicyopterus stimpsoni
Crustaceans —Atyoida bisulcata and Macrobrachium grandimanus
Mollusks — Neritina granosa and Neritina vespertina
(Wailuanui IFSAR § 4.0, pp. 35, 41-42; DAR Report on Wailuanui Stream, Maui, Hawaii, June
2008, pp. 1-2.)
337. The estimated natural (undiverted) median baseflow of Wailuanui Stream is 4.50
cfs (2.91 mgd). The amount of flow in Wailuanui Stream needed to achieve H90 is 2.90 cfs (1.87
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338. The recreational resources of Wailuanui Stream were classified as outstanding by
the Hawaii Stream Assessment’s regional recreational committee. The HAS identified
opportunities for fishing, hunting, swimming, and scenic views related to Wailuanui Stream. Of
a total of seven experiences, five were considered to be a high-quality experience. CWRM
identified the following activities that were known to occur or observed at or near Wailuanui
(Wailua Nui Bay): gill netting, throw netting, torch fishing, pole and line fishing, and board
surfing. (Wailuanui IFSAR § 5.0, pp. 43-44.)

339. Riparian resources of Wailuanui Stream were classified as substantial by the
Hawaii Stream Assessment. In Wailuanui, there are three large management areas (Haleakala
National Park, Koʻolau Forest Reserve, and Waikamoi Preserve) which comprise over 80% of
the hydrologic unit. Approximately 27% of Wailuanui is classified as seasonal, non-tidal
palustrine wetlands occurring in the central portion of the hydrologic unit. (Wailuanui IFSAR §
6.0, pp. 48, 49, 51.)
340. The headwaters of Wailuanui Stream originate in the lush tropical forests of the
Koʻolau Forest Reserve. Along with its tributaries West and East Wailuanui Streams, they flow
northeasterly through the evergreen forests that cover a majority of the drainage basin. A number
of waterfalls are located along the streams, three on each of the tributaries and six on the main
channel, most of which are immediately followed by a plunge pool. Waikani Falls is among the
waterfalls located in the more accessible lower reaches of Wailuanui Stream. A lookout point is
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located about 250 feet elevation that provides a picturesque view of the upper basin and the
lower basin where Wailuanui Stream empties into Wailua Nui Bay. (Wailuanui IFSAR § 7.0, p.
56.)
v. Navigation
341. No navigation values are present. (Wailuanui IFSAR § 8.0, p. 58.)
342. No instream hydropower generation occurs on Wailuanui Stream. (Wailuanui
IFSAR § 9.0, p. 59.)
343. Wailuanui Stream (both tributaries) does not appear on the 2006 List of Impaired
Waters in Hawaii, Clean Water Act § 303(d). It appears that no data were available for
Wailuanui Stream. Wailuanui Stream is Class 2 from the coast to approximately 1,380 feet
elevation, excepting for a small area near the confluence with East Wailuanui Stream, where it is
Class 1. Above 1,380 feet elevation, West Wailuanui Stream is Class 1. East Wailuanui Stream
is Class 2 from the coast to approximately 1,000 feet elevation, above that elevation, it is Class 1.
Marine waters at the mouth of the entire hydrologic unit of Wailuanui are Class AA waters.
(Wailuanui IFSAR § 10.0, p. 61.)

344. Four out of 7 diversions were registered under EMI. Of the three non-EMI
diversions, none was declared for domestic purposes. Two registered diversions divert water for
irrigation and livestock purposes. One diversion declared by MDWS diverts water for municipal
use. (Wailuanui IFSAR § 11.0, p. 63; Exh. C-100, p. 52.)
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Fishpond Study for the Islands of Hawaii, Maui, Lanai, and Kauai, there are no fishponds in the
hydrologic unit of Wailuanui. (Wailuanui IFSAR § 12.0, p. 75.)
f. Kuleana users
346. CWRM records for the hydrologic unit of Wailuanui indicate that there are two
registered diversions declared for taro cultivation. (Wailuanui IFSAR § 11.0, p. 75.)
347. The 2007 USGS Taro Water Report included findings regarding water use in what
it referred to as the “Wailua (Waikani) complex” which is the loi system that is irrigated solely
with water from Wailuanui Stream. As of the summer of 2006, this system comprised 2.80 acres
as shown Figure 32 on page 54. This system was being cultivated at that time by Norman “Bush”
Martin and Joseph “Kimo” Day with water drawn from the pond below Waikani Falls on
Wailuanui Stream. (Hew, WDT 1/27/15, 9136; Exh. C-108.)
348. The amount of water available from Waikani pond increased following the
releases of stream flow to comply with the 2008 IIFS decision due to the closing of EMI’s minor
diversions and the opening of the sluice gates on the major diversions operated on East
Wailuanui Stream and West Wailuanui Stream. EMI estimates that, since Wailuanui Stream is a
gaining stream below the IIFS point, this has resulted in a consistent flow of from 2 to 3 mgd
entering the pond below Waikani Falls (and much more during rain events). (Hew, WDT
1/27/15, ¶ 37.)
349. In spite of this increased flow to Waikani Pond after 2008, the loʻi system that
was previously being cultivated with water from Waikani Pond was no longer in operation as of
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the date of the hearings held herein. Mr. Day testified in paragraph 5 of his declaration that he
stopped farming “about four years ago.” Mr. Martin testified that he has temporarily cut back on
his taro cultivation while he works on addressing needed improvements to the pipe intake at the
head of the ʻauwai that brings water from Waikani pond to the Waikani loʻi complex. Mr. Clark
testified that he has been assisting Mr. Martin in evaluating the needed repairs, which involve the
removal of rocks that may have become lodged in a buried section of the pipe ʻauwai 100 feet or
more from the intake. From these photos, the area previously irrigated with Wailuanui Stream
water appears to now be substantially, if not entirely, removed from taro production. (Hew,
WDT 1/27/15, 1 38; Martin, Tr., 3/9/15, p. 185, I. 3 to p. 189, l. 18; Clark, Tr. 3/10/15, p. 113, 1.
18 to p. 117, l. 20.)
350. Application of the 130,000 to 150,000 gad irrigation requirement for taro from the
Nā Wai ʻEhā case to the 2.80 acres that were being irrigated from Waikani Pond in 2006 results
in a taro water need of from 0.36 to 0.42 mgd. Since this is far less than the 2-3 mgd that has
been available for the past six years, it appears that the supply of irrigation water to the area
served by Waikani Pond is much greater than needed. The current IIFS setting for Wailuanui
Stream, therefore, allows more than enough stream flow to reach Waikani pond to service taro
cultivation in the areas that have been irrigated with Wailuanui Stream water in the recent past.
351. To the extent that Nā Moku has identified parcels of land owned by its members
in the vicinity of Wailuanui Stream that may have previously been irrigated with Wailuanui
Stream water, and which may have appurtenant rights to claim some amount of water on that
basis, the record does not include an adequate breakdown of the parcels and acreage involved to
support any detailed findings to that effect. Under current conditions, however, if the
infrastructure challenge of conveying water from Waikani Pond to the areas sought to be
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irrigated can be solved, there is enough water available to more than double the acreage that has
recently been irrigated without dewatering the stretch between Waikani pond and the seaward
terminus of Wailunanui Stream.
352. Further, since the current IFS setting for Wailuanui Stream is occasionally not
met when stream flows are low, increasing the IIFS will not result in any greater amount of water
being available during low flows since, during such periods, no water is being diverted by EMI.
353. The adequacy of the IIFS to meet the needs for taro cultivation are demonstrated
by the hydrograph for Wailuanui Stream for the period of March 23, 2011 to September 23,
2014, which shows that the flow in Wailuanui Stream exceeds the IIFS of 3.05 cfs (2.97 mgd)
the vast majority of the time, often by a very large quantity. (Uyeno, 12/18/14 written report, p.
30.)
13. West Wailuaiki (6057)
354. The hydrologic unit of West Wailuaiki is located northeast of Haleakala. It covers
an area of 4.1 square miles from the upper slopes of Haleakala at 8,860 feet elevation to the sea.
(West Wailuaiki IFSAR § 1.1, p. 1.)
355. West Wailuaiki Stream is 6.9 miles in length, traversing north from its headwater
at the 6,000 feet altitude to the ocean. West Wailuaiki Stream has one tributary that branches
west from the main stream at the 2,600 feet altitiude. (West Wailuaiki IFSAR § 1.1, p. 1.)
356. West Wailuaiki Stream is mostly a gaining stream, with average annual ground
water gains of 4.5 mgd (6.96 cfs) above the Koolau/Wailoa Ditch level. (Exh. C-90, p. 31.)
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b. Diversions
357. EMI operates a diversion on West Wailuaiki Stream at the Koʻolau Ditch. (West
Wailuaiki IFSAR § 13.1, p. 94.)
c. Gaging stations
358. West Wailuaiki Stream has one active USGS continuous record stream gaging
station (station 16518000) located upstream of Koʻolau Ditch at 1,343 feet altitude. The gaging
station is currently in operation, and has streamflow record for at least 90 years. Since the station
is located upstream of the ditch, streamflow records reflect flows under natural (undiverted)
conditions. (West Wailuaiki IFSAR § 3.3, p. 29.)
359. According to USGS, the natural median baseflow at the upper reach of West
Wailuaiki Stream directly downstream of the Koʻolau Ditch is 6.00 cfs (3.23 mgd). At the
middle reach the natural median baseflow is 6.80 cfs (3.66 mgd) and at the lower reach it is 7.20
cfs (3.87 mgd). (Table attached to Gingerich WDT 10/31/14, p. 1; USGS Regression Study, p.
60 (Table 11) and p. 65 (Table 12).)
e. Instream values
360. For West Wailuaiki Stream, the Hawaii Stream Assessment classifies the aquatic
resources as “moderate,” meaning a fair amount of native species were present. A number of
native stream animals were observed in West Wailuaiki Stream, including ʻoʻopu nākea (Awaous
guamensis), ʻoʻopu nōpili (Sicyopterus stimpsoni), ʻoʻopu akupa (Eleotris sandwicensis), ʻoʻopu
alamoʻo (Lentipes concolor), ʻōpae kalaʻole (Atyoida bisulcata), and hīhīwai (Neritina granosa).
During the more recent surveys, these stream animals except the ʻoʻopu alamoʻo and ʻōpae
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kaleole were observed in the middle reach at water temperatures of 20.9°C and 22.1°C. A cast
net sampling of the stream mouth and shoreline at West Wailuaiki resulted in a total catch of 34
fishes and invertebrates. The most dominant catch was aholehole (Kuhlia xenura), which were
found in the lower salinity areas (i.e., stream mouth)10. The endemic Hawaiian surf fish (Iso
hawaiiensis) were found in areas with higher salinity, typically the shoreline. Other species
found included uouoa (Neomyxus leuciscus) and tiger shrimp (Palaemon pacificus). West
Wailuaiki Stream rates high in comparison to other watersheds in Maui and statewide. DAR
assigns West Wailuaiki a total watershed rating of 7 out of 10, a total biological rating of 7 out of
10, and a combined overall rating of 8 out of 10. Native species observed in the stream include:
Fish — Awaous guamensis, Eleotris sandwicensis, Gobiid sp., Lentipes concolor,

Kuhlia sp., Kulhia xenura, and Sicyopterus stimpsoni
Crustaceans — Atyoida bisulcata, Metopograpsus thukuhar
Insects — Telmatogen sp.
Mollusks — Ferrissia sharpi and Neritina granola
Sponge — Heteromeyenia baileyi
(West Wailuaiki IFSAR § 4.2, pp. 39, 43 and § 4.4, p. 43; DAR Report on West Wailuaiki Stream,
Maui, Hawaiʻi, October 2009, p. 6.)
361. Upstream from the Koolau Ditch, where there are no diversions, there is 100
percent natural habitat. Downstream from the ditch, enough base flow could be maintained by
ground water contribution to provide about 39 to 49 percent of the exptect natural habitat for all
species except opae. Near the coast, the stream retains enough flow to provide over 50 percent of
the expected habitat availability for all species when about 83 percent of the natural base flow
was diverted. Overall, about 40 to 50 percent of the natural habitat for all species in West
10
The abundance of aholehole in the estuary could be an indicator for a healthy stream
since this species of fish was commonly found in estuaries with flowing streams and open stream
mouths to the ocean. (West Wailuaiki IFSAR § 4.4, p. 44.)
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Wailuaiki Stream is maintained below Koolau Ditch under diverted conditions. The estimated
natural (undiverted) median baseflow of West Wailuaiki Stream is 6.00 cfs (3.88 mgd). The
amount of flow in West Wailuaiki Stream needed to achieve H90 is 3.80 cfs (2.46 mgd). (West
Wailuaiki IFSAR § 4.3, p. 41; Table attached to Gingerich WDT 10/31/14, p. 1; Exh. HO-1.)
362. The recreational resources of West Wailuaiki Stream were classified as
“outstanding” by the Hawaii Stream Assessment’s regional recreational committee. The Hawaii
Stream Assessment identified opportunities for hiking, fishing, hunting, swimming, and scenic
views related to West Wailuaiki Stream. Of the five, only scenic views was considered to be a
high-quality experience. (West Wailuaiki IFSAR § 5.0, pp. 51, 53.)

363. Riparian resources of West Wailuaiki Stream were classified as “substantial” by
the Hawaii Stream Assessment. About 71% of the West Wailuaiki hydrologic unit lies within the
Koʻolau Forest Reserve, 18% within the Waikamoi Preserve, and only 1% within the Haleakala
National Park. Approximately 59% of West Wailuaiki is classified as non-tidal palustrine
wetlands occurring in the upper slopes of the hydrologic unit. (West Wailuaiki IFSAR § 6.0, pp.
55-57.)
364. West Wailuaiki Stream is fed by lush native communities of Ohia forests and
Vegetation surrounding the lower reaches of West Wailuaiki Stream is predominately alien
forests. The hydrologic unit lies within the Waikamoi Preserve in the upper elevations, and the
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Ko ʻolau Forest Reserve in the intermediate and lower elevations. A number of waterfalls are
located along the lower reaches of the stream, one of which can be seen from Hana Highway.
The stream empties into Wailua lki Bay, where a number of coastal activities are enjoyed by the
locals as well as the general public. (West Wailuaiki IFSAR § 7.0, p. 63.)
v. Navigation
365. No navigation values are present. (West Wailuaiki IFSAR § 8.0, p. 65.)
which is supplied with water from several sources including West Wailuaiki Stream. (West
367. West Wailuaiki Stream appears on the 2006 List of Impaired Waters in Hawaiʻi,
Clean Water Act § 303(d). While some data exist for West Wailuaiki Stream, there were not
of water quality standards or the applicable designated uses. West Wailuaiki Stream is classified
as Class lb inland waters from its headwaters to approximately 1,400 feet elevation, as the
surrounding land is in the conservation subzone “protective” and the stream also lies in the
Koʻolau Forest Reserve. From there down to about 100 feet elevation, West Wailuaiki Stream is
classified as Class la inland waters because the stream lies in the Koʻolau Forest Reserve. From
there to the sea, it is classified as Class 2 inland waters. Marine waters at the mouth of the
hydrologic unit of West Wailuaiki are Class AA waters. (West Wailuaiki IFSAR § 10.0, pp. 70-
71.)
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368. There is only one registered diversion which belongs to EMI. The DOH Safe
Drinking Water Branch does not currently regulate any public water systems in the hydrologic
unit of West Wailuaiki. (West Wailuaiki IFSAR § 11.0, p. 73.)

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hydrologic unit of West Wailuaiki. (West Wailuaiki IFSAR § 12.0, p. 90.)
f. Kuleana users
370. CWRM records for the hydrologic unit of West Wailuaiki indicate that there are
no registered diversions declared for taro cultivation or other domestic purposes. (West
14. East Wailuaiki (6058)
371. The hydrologic unit of East Wailuaiki is located northeast of Haleakala. It covers
an area of 3.5 square miles from the upper slopes of Haleakala at 8,500 feet elevation to the sea.
(East Wailuaiki IFSAR § 1.1, p. 1.)
372. East Wailuaiki Stream is 7.1 miles in length, traversing north from its headwater
at the 6,350 feet altitude to the ocean. East Wailuaiki Stream has one tributary that branches west
from the main stream at the 1,540 feet altitude and it is headed at the 3,300 feet altitude. (East
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b. Diversions
373. EMI operates a diversion on East Wailuaiki Stream at the Koʻolau Ditch. (East
c. Gaging stations
374. East Wailuaiki Stream has one inactive USGS continuous-record stream gaging
station (16517000), located upstream of Koʻolau Ditch at the 1,343 feet altitude. The gaging
station has streamflow record for at least 37 years. Since the station is located upstream of the
ditch, streamflow records reflect flows under natural (undiverted) conditions. (East Wailuaiki
IFSAR § 3.3, p. 29.)
375. According to USGS, the natural median baseflow of East Wailuaiki at the upper
reach, directly downstream of the Koʻolau Ditch, is 5.80 cfs (3.12 mgd); at the middle reach it is
6.80 cfs (3.66 mgd); and at the lower reach it is 7.20 cfs (3.87 mgd). (Table attached to
Gingerich WDT 10/31/14, p. 1; USGS Regression Study, p. 60 (Table 11).)
e. Instream values
376. For East Wailuaiki Stream, the Hawaii Stream Assessment classifies the aquatic
native stream animals were observed in East Wailuaiki Stream, including ʻoʻopu nākea (Awaous
During the more recent surveys, these stream animals except the ʻōpae kalaʻole were observed in
the middle reach at water temperatures of 20.6°C and 22.4°C. The ʻōpae kalaʻole dominated the
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upper reach above the ditch at water temperatures of 18.9°C. A cast net sampling of the stream
mouth and shoreline at East Wailuaiki resulted in a total catch of 116 fishes and invertebrates.
The most dominant catch was uouoa (Neomyxus leuciscus), which were found in high surge and
white water. Other species found included Tao (Atherinomorus insularutn), nehu
(Encrasicholina purpurea), aholeʻhole (Kuhlia xenura), and tiger shrimp (Palaemon pacificus)11.
A school of striped mullet (Mugil cephalus) were seen along the shoreline but not captured
during sampling. East Wailuaiki Stream rates high in comparison to other watersheds in Maui
and statewide. DAR assigns East Wailuaiki a total watershed rating of 7 out of 10, a total
Fish — Awaous guamensis, Eleotris sandwicensis, Kulhia xenura, and Sicyopterus

stimpsoni
Insects — Anax junius, Anax sp., Anax strenuous, Limonia grimshawi, Limonia
Jacobus, Megalagrion blackbumi, Megalagrion calliphya, Megalagrion
sp., Procanacae acuminate, Procanace confuse, Saldula exulans, Scatella
cilipes, Scatella clavipes, Scatella femoralis, Telmatogeton abnormis,
Telmatogen sp.
Mollusks — Ferrissia sharpi and Neritina granosa
(East Wailuaiki IFSAR § 4.2, pp. 39, 43 and § 4.4, p. 44; DAR Report on East Wailuaiki Stream,
Maui, Hawaii, October 2009, p. 6.)
377. Upstream from the Koolau Ditch, where there are no diversions, there is 100
percent natural habitat. Downstream from the ditch, enough base flow could be maintained by
ground water contribution to provide about 43 to 53 percent of the exptect natural habitat for all
11
The abundance of aholehole in the estuary could be an indicator for a healthy stream
since this species of fish was commonly found in estuaries with flowing streams and open stream
mouths to the ocean. (East Wailuaiki IFSAR § 4.4, p. 45.)
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species except opae. Near the cost, the stream retains enough flow to provide over 49 percent of
the expected habitat availability for all species when about 79 percent of the natural base flow
was diverted. Overall, about 40 to 50 percent of the natural habitat for all species in East
Wailuaiki Stream is maintained below Koolau Ditch under diverted conditions. The estimated
natural (undiverted) median baseflow of East Wailuaiki Stream is 5.80 cfs (3.75 mgd). The
amount of flow in East Wailuaiki Stream needed to achieve H90 is 3.70 cfs (2.39 mgd). (East
Wailuaiki IFSAR § 4.3, p. 42; Table attached to Gingerich WDT 10/31/14, p. 1; Exh. HO-1.)
378. The recreational resources of East Wailuaiki Stream were classified as
“outstanding” by the Hawaii Stream Assessment’s regional recreational committee. The Hawaii
Stream Assessment identified opportunities for hiking, fishing, hunting, swimming, and scenic
views related to East Wailuaiki Stream. Of the five, only scenic views were considered to be a
high-quality experience. (East Wailuaiki IFSAR § 5.0, p. 52.)

379. Riparian resources of East Wailuaiki Stream were classified as “outstanding” by
the Hawaii Stream Assessment. About 78% of the East Wailuaiki hydrologic unit lies within the
Koʻolau Forest Reserve, 10% within the Waikamoi Preserve, and only 3% within the Haleakala
National Park. Approximately 66% of East Wailuaiki is classified as non-tidal palustrine
wetlands occurring in the upper slopes of the hydrologic unit. (East Wailuaiki IFSAR § 6.0, pp.
56-59.)
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380. East Wailuaiki Stream is fed by lush native communities of Ohia forests and
Vegetation surrounding the lower reaches of East Wailuaiki Stream is predominately alien
forests. The hydrologic unit lies within the Waikamoi Preserve in the upper elevations, and the
Koʻolau Forest Reserve in the intermediate and lower elevations. A number of waterfalls are
located along the lower reaches of the stream, one of which can be seen from Hana Highway.
The stream empties into Wailua Iki Bay, where a number of coastal activities are enjoyed by the
locals as well as the general public. The easternmost end of the hydrologic unit is Papiha Point,
which offers a great view of Wailua Iki Bay and Makoloaka Island. (East Wailuaiki IFSAR §
7.0, p. 64.)
v. Navigation
381. No navigation values are present. (East Wailuaiki IFSAR § 8.0, p. 66.)
which is supplied with water from several sources including East Wailuaiki Stream. (East
383. East Wailuaiki Stream appears on the 2006 List of Impaired Waters in Hawaii,
Clean Water Act § 303(d). While some data exist for East Wailuaiki Stream, there were not
of water quality standards or the applicable designated uses. East Wailuaiki Stream is classified
as Class lb inland waters from its headwaters to approximately 1,400 feet elevation, as the
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surrounding land is in the conservation subzone “protective” and the stream also lies in the
Koʻolau Forest Reserve. From there to the sea, East Wailuaiki Stream is classified as Class 2
inland water. Marine waters at the mouth of the hydrologic unit of East Wailuaiki are Class AA
waters. (East Wailuaiki IFSAR § 10.0, pp. 71-72.)

384. No diversions other than EMI diversions diverts water for irrigation purposes. The
DOH Safe Drinking Water Branch does not currently regulate any public water systems in the
hydrologic unit of East Wailuaiki. (East Wailuaiki IFSAR § 11.0, p. 74.)

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hydrologic unit of East Wailuaiki. (East Wailuaiki IFSAR § 12.0, p. 91.)
f. Kuleana users
386. CWRM records for the hydrologic unit of East Wailuaiki indicate that there are
no registered diversions declared for taro cultivation or other domestic purposes. (East Wailuaiki
IFSAR § 12.0, p. 85.)
15. Kopiliula (6059)
387. The hydrologic unit of Kopiliʻula is located northeast of Haleakala. It covers an
area of 5.2 square miles from the upper slopes of Haleakala at 8,200 feet elevation to the sea.
(Kopiliʻula IFSAR § 1.1, p. 1.)
102
388. The hydrologic unit of Kopiliʻula contains Kopiliʻula Stream and its tributary,
Pua‘aka‘a Stream, that branches east from the main stream at the 77 feet altitude and is headed at
the 2,000 feet altitude. (Kopiliʻula IFSAR § 3.3, p. 28.)
389. Kopiliʻula Stream is 7.6 miles in length, traversing north from its headwater at the
7,700 feet altitude to the ocean. (Kopiliʻula IFSAR § 1.1, p. 1; § 3.3, p. 28.)
b. Diversions
390. EMI operates a diversion on Kopiliʻula Stream at the Koolau Ditch. (Kopiliʻula
IFSAR § 13.1, p. 98.)
391. EMI operates a diversion on Pua‘aka‘a Stream at the Koʻolau Ditch. (Kopiliʻula
IFSAR § 13.1, p. 102.)
c. Gaging stations
392. Kopiliʻula Stream has one inactive USGS continuous-record stream gaging
station (station 16516000), located upstream of Koʻolau Ditch at the 1,292 feet altitude. The
gage was active from 1914 to 1917 and 1922 to 1958. (Kopiliʻula IFSAR § 3.3, p. 29.)
393. Pua‘aka‘a Stream has not not been monitored by a continuous-record stream
gaging station. (Kopiliʻula IFSAR § 3.3, p. 29.)
394. According to USGS, the natural median baseflow at the upper reach of Kopiliʻula
Stream directly downstream of the Koolau Ditch is 5.00 cfs (2.69 mgd); at the middle reach it is
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395. The natural median baseflow for Pua‘aka‘a Stream is 1.1 cfs (.71 mgd) at the
upper reach and 2.2 cfs (1.42 mgd) at the middle reach. (Table attached to Gingerich WDT
10/31/14, p. 1; USGS Regression Study, p. 60 (Table 11).)
e. Instream values
396. For Kopiliʻula Stream, the Hawaii Stream Assessment classifies the aquatic
native stream animals were observed in Kopiliʻula Stream, including ʻoʻopu nākea (Awaous
During the more recent surveys, the ʻōpae kaleole was only observed in the upper reach above
the ditch. The ʻoʻopu nākea, ʻoʻopu nōpili, and hīhīwai were observed in the middle and lower
reaches, whereas the ʻoʻopu alamoʻo was observed in the upper and lower reaches. All these
stream animals except the ʻoʻopu akupa were observed in the lower, middle, and upper reaches
in past surveys. The estuary in Kopiliʻula was relatively small compared to other estuaries
surveyed in East Maui, and not much estuarine habitat was available. A recent cast net sampling
of the stream mouth resulted in only one specimen of Hawaii surf fish (Iso hawaiiensis), which
usually inhabit areas with high salinity.
397. Kopiliʻula Stream which provides excellent instream habitats and a diversity of of
native stream rates high in comparison to other watersheds in Maui and statewide. DAR assigns
Haʻipuaʻena a total watershed rating of 8 out of 10, a total biological rating of 7 out of 10, and a
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Fish — Awaous guamensis, Eleotris sandwicensis, Lentipes concolor, Kulhia
xenura, and Sicyopterus stimpsoni
Insects — Telmatogen sp.
Mollusks — Neritina granosa
(Kopiliʻula IFSAR § 4.2, pp. 41 and § 4.4, p. 46; DAR Report on Kopiliʻula Stream, Maui,
Hawaii, October 2009, p. 6.)
398. Upstream of the Koʻolau Ditch, where there are no diversions, the stream has no
reduction in flow and thus retains 100 percent of the natural habitat. Downstream from the ditch
where Kopiliula Stream is diverted, the stream is dry (no available habitat) until more ground
water is gained to provide about 50 percent of the expected natural habitat. Near the coast,
enough base flow is maintained by ground water contribution to provide about 50 percent of the
expected habitat for all species. If 50 percent of the natural base flow is in the stream, at least 70
percent of the natural habitat will be available. Overall, about 50 percent of the natural habitat
for all species in Kopiula Stream was maintained below Koolau Ditch under diverted conditions.
399. Pua‘aka‘a Stream was not surveyed as part of the Hawaii Stream Assessment.
400. The habitat simulation model were extrapolated to estimate the stream habitat
availability for Pua‘aka‘a Stream. Upstream from Koʻolau Ditch where there are no diversions,
the stream has no reduction in flow and thus, retains 100 percent of the natural habitat.
Downstream from the ditch where the stream is diverted, the stream is dry until more
groundwater is gained to provide 75 to 100 percent of the expected natural habitat for all species.
Overall, Pua‘aka‘a has already maintained over 50 percent of the natural habitat under diverted
conditions. (Kopiliʻula IFSAR § 4.3, p. 45.)

105
401. The recreational resources of Kopiliʻula Stream were classified as substantial by
Assessment identified opportunities for fishing, hunting, swimming, and scenic views related to
Kopiliʻula Stream. None were considered to be a high-quality experience. (Kopiliʻula IFSAR §
5.0, p. 54.)

402. Riparian resources of Kopiliʻula Stream were classified as outstanding by the
Hawaii Stream Assessment. About 61% of the unit lies within the Koʻolau Forest Reserve, 25%
within the Hanawī Natural Area Reserve, 6% within Haleakala National Park, and only 2%
within the Waikamoi Preserve. Approximately 62% of Kopiliʻula is classified as non-tidal
palustrine wetlands occurring in the intermediate and upper slopes of the hydrologic unit.
(Kopiliʻula IFSAR § 5.0, pp. 58, 59, and 61.)
403. Kopiliʻula Stream is fed by lush native communities of Ohia forests and forested
wetlands that dominate the upper and intermediate slopes of the hydrologic unit. Vegetation
surrounding the lower reaches of Kopiliʻula Stream is predominately alien forests. The
surrounding vegetation for Pua‘aka‘a Stream is also predominately alien forests. A number of
waterfalls are located along the lower reaches of the Kopiliʻula and Pua‘aka‘a streams, and one
of the waterfalls on Kopiliʻula Stream can be seen from Hana Highway. The hydrologic unit lies
within four forest reserves, Haleakala National Park, Waikamoi Preserve, Koʻolau Forest
106
Reserve, and Hanawī Natural Area Reserve. Located in the westernmost end of the hydrologic
unit is Papiha Point, which offers a view of Makoloaka Island. (Kopiliʻula IFSAR § 7.0, p. 67.)
v. Navigation
404. There are no navigation values present. (Kopiliʻula IFSAR § 8.0, p. 69.)
which is supplied with water from several sources including Kopiliʻula Stream and Pua‘aka‘a
Stream. (Kopiliʻula IFSAR § 9.0, p. 70.)
406. Kopiliʻula Stream appears on the 2006 List of Impaired Waters in Hawaii, Clean
Water Act § 303(d). While some data exist for Kopiliʻula Stream, there were not sufficient data
for decision-making; therefore, no decision was made pertaining to the attainment of State of
Hawaii Water Quality Standards or the applicable designated uses. Kopiliʻula Stream is
classified as Class lb inland waters from its headwaters to approximately 1,300 feet elevation, as
the surrounding land is in the conservation subzone “protective,” and the stream also lies in the
Koʻolau Forest Reserve, excepting the 0.2 miles at the west tributary headwater that lies in the
Waikamoi Preserve and it is classified as Class la inland waters because, while not in the
protective subzone, the stream lies in the Koʻolau Forest Reserve. From there to the sea, it is
classified as Class 2 inland waters. Marine waters at the mouth of the hydrologic unit of
Kopiliʻula are Class AA waters. (Kopiliʻula IFSAR § 10.0, pp. 75-76.)
107
407. No non-EMI diversions divert water for domestic or irrigation purposes. The
hydrologic unit of Kopiliʻula. (Kopiliʻula IFSAR § 11.0, p. 78.)

rights
present in the hydrologic unit of Kopiliʻula. (Kopiliʻula IFSAR § 12.0, p. 89.)
f. Kuleana users
409. CWRM records for the hydrologic unit of Kopiliʻula indicate that no registered
diversions were declared for taro cultivation or other domestic purposes. (Kopiliʻula IFSAR §
12.0, p. 89.)
16. Waiohue (6060)
410. The hydrologic unit of Waiohue is located northeast of Haleakala. It covers an
area of 0.8 square miles from the lower slopes of Haleakala at 2,800 feet elevation to the sea.
(Waiohue IFSAR § 1.1, p. 1.)
411. Waiohue Stream is 2.6 miles in length, traversing north from its headwater at the
2,250 feet altitude to the ocean. (Waiohue IFSAR § 1.1, p. 1.)
b. Diversions
412. EMI operates a diversion on Waiohue Stream at the Koʻolau Ditch. (Waiohue
IFSAR § 13.1, p. 94.)
108
c. Gaging stations
413. There is one inactive USGS continuous-record stream gaging station located on
Waiohue Stream upstream of Koʻolau Ditch at the 1,316 feet altitude. (Waiohue IFSAR § 3.3, p.
28.)
414. According to USGS, the natural median baseflow at the upper reach of Waiohue
Stream directly downstream of the Koʻolau Ditch is 5.00 cfs (2.69 mgd); at the middle reach it is
e. Instream values
415. For Waiohue Stream, the Hawaii Stream Assessment classifies the aquatic
resources as “outstanding,” meaning a diversity of native species were present. A number of
native stream animals were observed in Waiohue Stream, including ʻoʻopu nākea (Awaous
guamensis), ʻoʻopu nōpili (Sicyopterus stimpsoni), ʻoʻopu akupa (Eleotris sandwicensis), ʻōpae
kalaʻole (Atyoida bisulcata), and hīhīwai (Neritina granosa). During the most recent surveys,
ʻoʻopu nōpili was observed near the stream mouth at a water temperature of 20.5° C. ʻOʻopu
nākea and hīhīwai were observed in the upper reach near the ditch. The only species recorded in
the upper reach above the ditch was ʻōpae kalaʻole. Water temperatures dropped by almost 3
degrees from the lower reach to the upper reach above the ditch. The poeciliid fishes dwell in the
deep pools created above diversion structures and are known to transmit parasites to native
fishes. A cast net sampling of the stream mouth and shoreline at Waiohue resulted in catches of
aholehole (Kuhlia xenura) and kupipi (Abudefduf sordidus). The most dominant catch was
109
aholehole (Kuhlia xenura), which were found in areas with varying salinity. The stream had
minimal flow entering the ocean during the survey. Waiohue Stream rates high in comparison to
other watersheds in Maui and statewide. DAR assigns Waiohue a total watershed rating of 7 out
of 10, a total biological rating of 8 out of 10, and a combined overall rating of 7 out of 10. Native
Fish — Awaous guamensis, Eleotris sandwicensis, Kuhlia sandwicensis,

Kuhlia sp., Kulhia xenura, Lentipes concolor, Mugil cephalus,
Sicyopterus stimpsoni, Stenogobius hawaiiensis
Crustaceans — Amphipod asp., Atyoida bisulcata and
Macrobrachium grandimanus Insects — Anax junius,
Megalagrion sp. and Telmatogen sp.
Mollusks — Ferrissia sharpi, Nerita picea, Neritina granosa, Neritid sp.
and Neritina vespertina
(Waiohue IFSAR § 4.2, pp. 42 and § 4.4, p. 46; DAR Report on Waiohue Stream, Maui, Hawaii,
October 2009, p. 6.)
416. The estimated natural (undiverted) median baseflow of Waiohue Stream at its
upper reach is 5.00 cfs (3.23 mgd). The amount of flow in Waiohue Stream needed to achieve
H90 at this site is 3.20 cfs (2.07 mgd). (Table attached to Gingerich WDT 10/31/14, p. 1; Exh.
HO-1.)
417. The recreational resources of Waiohue Stream were classified as outstanding by
Assessment identified opportunities for camping, hiking, fishing, swimming, parks, and scenic
views related to Waiohue Stream. Of these six, only parks were not considered to be a high-
quality experience. (Waiohue IFSAR § 5.0, p. 52.)
110
418. Riparian resources of Waiohue Stream were not classified by the Hawaii Stream
Assessment. About 83% of the unit lies within the Koʻolau Forest Reserve, 10% within the
Hanawī Natural Area Reserve, and less than 1% within the Puaa Kaa State Wayside.
Approximately 32% of Waiohue is classified as non-tidal palustrine wetlands occurring in the
upper slopes of the hydrologic unit. (Waiohue IFSAR § 6.0, pp. 56-58.)
419. Waiohue Stream is fed by lush native communities of Ohia forests and forested
surrounding the lower reaches of Waiohue Stream is predominately alien forests. A number of
waterfalls are located along the lower reach of the Waiohue Stream, and one of the waterfalls can
be seen from Hana Highway and one can be seen from the Puaa Kaa State Wayside. The
hydrologic unit lies within two forest reserves, Koʻolau Forest Reserve and Hanawī Natural Area
Reserve. Mokuhuki Island can be viewed from the coast. Waiohue Bay is a popular fishing
location. (Waiohue IFSAR § 7.0, p. 64.)
v. Navigation
420. No navigation values are present. (Waiohue IFSAR § 8.0, p. 66.)
which is supplied with water from several sources including Waiohue Stream. (Waiohue IFSAR
§ 9.0, p. 67.)
111
422. Waiohue Stream does not appear on the 2006 List of Impaired Waters in Hawaii,
Clean Water Act § 303(d). Waiohue Stream is classified as Class lb inland waters from its
headwaters to approximately 1,250 feet elevation, as the surrounding land is in the conservation
subzone “protective.” The stream also lies in the Koʻolau Forest Reserve and the Hanawī Natural
Area Reserve in the headwaters. Between the 1,250 feet and 100 feet altitudes, the stream is
classified as Class la inland waters because, while not in the protective subzone, the stream lies
in the Koʻolau Forest Reserve. From there to the sea, it is classified as Class 2 inland waters.
Marine waters at the mouth of the hydrologic unit of Waiohue are Class AA waters. (Waiohue
IFSAR § 10.0, pp. 71-72.)

423. One non-EMI diversion registered by the State Division of State Parks provides
non-potable water to the comfort station at the Puaa Kaa State Wayside. The DOH Safe Drinking
Water Branch does not currently regulate any public water systems in the hydrologic unit of
Waiohue. (Waiohue IFSAR § 11.0 pp. 74-75.)

rights
present in the hydrologic unit of Waiohue. (Waiohue IFSAR § 12.0, p. 91.)
112
f. Kuleana users
425. CWRM records for the hydrologic unit of Waiohue indicate that no registered
diversions were declared for taro cultivation or other domestic purposes. (Waiohue IFSAR §
12.0, p. 85.)
17. Paʻakea (6061)
426. The hydrologic unit of Paʻakea is located northeast of Haleakala. It covers an area
of 1 square mile from the lower slopes of Haleakala at 4, l00 feet elevation to the sea. (Paʻakea
IFSAR .§ 1.1, p. 1.)
427. Paʻakea Stream is 1.8 miles in length, traversing north from its headwater at the
1,800 feet altitude to the ocean. (Waiohue IFSAR § 1.1, p. 1.)
b. Diversions
428. EMI operates a diversion on Paʻakea Stream at the Koʻolau Ditch. (Paʻakea
IFSAR § 13.1, p. 94.)
c. Gaging stations
429. There is one inactive USGS continuous-record stream gaging station (16514000)
located on Paʻakea Stream downstream of the Koʻolau Ditch at the 650 feet altitude. The station
has streamflow record for at least 14 years. (Paʻakea IFSAR § 3.3, p. 30.)
430. According to USGS, the natural median baseflow at the upper reach of Paʻakea
113
e. Instream values
431. For Paʻakea Stream, the Hawaii Stream Assessment classifies the aquatic
native stream animals were observed in Paʻakea Stream, including ʻoʻopu nākea (Awaous
guatnensis), ʻoʻopu nōpili (Sicyopterus stimpsoni), ʻoʻopu akupa (Eleotris sandwicensis), ʻoʻopu
alamoʻo (Lentipes concolor), ʻōpae kaleole (Atyoida bisulcata), and hīhīwai (Neritina granosa).
During the most recent surveys, only the ʻōpae kalaʻole was observed in the upper reach above
the ditch. The ʻoʻopu akupa, ʻoʻopu nōpili, hīhīwai, and postlarvae were observed inside the first
plunge pool as well as in the lower reach leading to the ocean. Above the first waterfall, ʻoʻopu
nākea, ʻoʻopu nōpili, ʻoʻopu alamoʻo, and hīhīwai were observed. Introduced species such as
river prawns (Macrobrachiutn lar) were observed in the lower and middle reaches of the stream.
The estuary in Paʻakea was relatively small compared to other estuaries surveyed in east Maui,
and not much estuarine habitat was available. A cast net sampling of the stream mouth resulted
in a total of eight catches, including aholehole (Kuhlia xenura), Christmas wrasse (Thalassoma
trilobatum), and ʻIao (Atherinomorus insularum). The stream had minimal flow entering the
ocean at the time of the survey. Paʻakea Stream rates medium in comparison to other watersheds
in Maui and statewide. DAR assigns Paʻakea a total watershed rating of 6 out of 10, a total
Fish — Awaous guamensis, Eleotris sandwicensis, Kulhia xenura, Lentipes

concolor, Mugil cephalus and Sicyopterus stimpsoni
Snails — Neritina granosa
114
(Paʻakea IFSAR § 4.2, pp. 41 and § 4.4, p. 46; DAR Report on Paʻakea Stream, Maui, Hawaii,
432. The estimated natural (undiverted) median baseflow of Paʻakea Stream is 0.90 cfs
(0.58 mgd). The amount of flow in Paʻakea Stream needed to achieve H90 is 0.58 cfs (0.37 mgd).
433. The recreational resources of Paʻakea Stream were classified as substantial by the
identified opportunities for fishing, and it was considered to be a high-quality experience.
(Paʻakea IFSAR § 5.0, p. 52.)

434. Riparian resources of Paʻakea Stream were not classified by the Hawaiʻi Stream
Assessment. About 54% of the unit lies within the Hanawī Natural Area Reserve, and 20%
within the Koʻolau Forest Reserve. Approximately 61% of Paʻakea is classified as non-tidal
palustrine wetlands occurring in the upper slopes of the hydrologic unit. (Paʻakea IFSAR § 6.0,
pp. 56-58.)
435. Paʻakea Stream is fed by lush native communities of Ohia forests and forested
surrounding the lower reaches of Paʻakea Stream is predominately alien forests. A number of
springs are located along the intermediate and lower reaches of the stream. The hydrologic unit
lies within two forest reserves, Koʻolau Forest Reserve and Hanawī Natural Area Reserve.
115
Mokuhuki Island may be viewed from the coast. Waiohue Bay is a popular fishing location.
(Paʻakea IFSAR § 7.0, p. 64.)
v. Navigation
436. No navigation values are present. (Paʻakea IFSAR § 8.0, p. 66.)
which is supplied with water from several sources including Paʻakea Stream. (Paʻakea IFSAR §
9.0, p. 67.)
438. Paʻakea Stream does not appear on the 2006 List of Impaired Waters in Hawaii,
Clean Water Act § 303(d). Paʻakea Stream is classified as Class lb inland waters from its
subzone “protective” and the stream also lies in the Koʻolau Forest Reserve. Downstream from
the 1,300 feet altitude, the stream is classified as Class 2 inland waters and the stream does not
lie within any forest reserve. Marine waters at the mouth of the entire hydrologic unit of Paʻakea
are Class AA waters. (Paʻakea IFSAR § 10.0, pp. 71-72.)

439. No non-EMI registered diversions divert water for domestic or irrigation
purposes. The DOH Safe Drinking Water Branch does not currently regulate any public water
systems in the hydrologic unit of Paʻakea. (Paʻakea IFSAR § 11.0, p. 74.)
116
rights
present in the hydrologic unit of Paʻakea. (Paʻakea IFSAR § 12.0, p. 91.)
f. Kuleana users
441. CWRM records for the hydrologic unit of Paʻakea indicate that there no registered
diversions that were declared for taro cultivation. (Paʻakea IFSAR § 12.0, p. 80.)
18. Waiaaka (6062)
442. The hydrologic unit of Waiaaka is located northeast of Haleakala. It covers an
area of about 0.2 square miles from the lower slopes of Haleakala at 1,600 feet elevation to the
sea. (Waiaaka IFSAR § 1.1, p. 1.)
443. Waiaaka Stream is 0.9 miles in length, traversing north from its headwater at the
1,300 feet altitude to the ocean. (Waiaaka IFSAR § 1.1, p. 1.)
b. Diversions
444. EMI operates a diversion on Waiaaka Stream at the Koʻolau Ditch. (Waiaaka
IFSAR § 13.1 at 89.)
c. Gaging stations
445. One inactive USGS continuous-record stream gaging station (station 16513000) is
located on Waiaaka Stream downstream of Koʻolau Ditch at the 650 feet altitude. The station has
streamflow record for at least 14 years. Since the station is located downstream of the Koʻolau
Ditch, strearnflow records reflect flows under diverted conditions. (Waiaaka IFSAR § 3.3, p. 29.)
117
446. According to USGS, the natural median baseflow at the middle reach of Waiaaka
below the Koʻolau Ditch is 0.77 cfs (0.41 mgd); at the lower reach it is 1.10 cfs (0.59 mgd).
(Table attached to Gingerich WDT 10/31/14, p. 1; USGS Regression Study, p. 60 (Table 11) and
p. 64 (Table 12).)
e. Instream values
447. Waiaaka Stream was not assessed in the Hawaii Stream Assessment. (Waiaaka
IFSAR § 4.2, p. 40.)
448. The estimated natural (undiverted) median baseflow of Waiaaka Stream is 0.77
cfs (0.50 mgd). The amount of flow in Waiaka Stream needed to achieve H90 is 0.49 cfs (0.32
449. The Hawaii Stream Assessment identified opportunities for fishing only related to
Waiaaka Stream and it was considered to be a high-quality experience. (Waiaaka IFSAR § 5.0,
p. 47.)

450. Riparian resources of Waiaaka Stream were not classified by the Hawaii Stream
Assessment. Only a small percent of the hydrologic unit lies within the Koʻolau Forest Reserve.
There are no non-tidal palustrine wetlands occurring in the hydrologic unit. (Waiaaka IFSAR §
6.0, pp. 51-53.)
118
451. Vegetation surrounding Waiaaka Stream is predominately alien forests and
grasslands with scattered Ohia forests and Uluhe shrub lands. A number of springs are located
along the stream, with one of the springs near Hana Highway and another in the headwaters.
Although the hydrologic unit does not lie within any forest reserve or preserve, the Na Ala Hele
trail is located in the lower basin and crosses the stream where the public can access. Waiohue
Bay is a popular fishing location. (Waiaaka IFSAR § 7.0, p. 59.)
v. Navigation
452. No navigation values are present. (Waiaaka IFSAR § 8.0, p. 61.).
which is supplied with water from several sources including Waiaakea Stream. (Waiaaka IFSAR
§ 9.0, p. 62.)
454. Waiaaka Stream does not appear on the 2006 List of Impaired Waters in Hawaii,
Clean Water Act § 303(d). Waiaaka Stream is classified as Class lb inland waters from its
headwaters to Hana Highway (approximately 1,240 feet elevation), as the surrounding land is in
the conservation subzone “protective.” Downstream from Hana Highway, the stream is classified
as Class 2 inland waters. Marine waters at the mouth of the hydrologic unit of Waiaaka are Class
AA waters. (Waiaaka IFSAR § 10.0, pp. 66-67.)

455. No non-EMI diversions divert water for domestic or irrigation purposes.
(Waiaaka IFSAR § 11.0, p. 69.)

119
rights
present in the hydrologic unit of Waiaaka. (Waiaaka IFSAR § 12.0, p. 80.)
f. Kuleana users
457. CWRM records for the hydrologic unit of Waiaaka indicate that there are no
registered diversions that were declared for taro cultivation. (Waiaaka IFSAR § 12.0, p. 86.)
19. Kapaula (6063)
458. The hydrologic unit of Kapaula is located northeast of Haleakala. It covers an area
of 0.8 square miles from the lower slopes of Haleakala at 2,700 feet elevation to the sea.
(Kapaula IFSAR § 1.1, p. 1.)
459. Kapaula Stream is 2.6 miles in length, traversing north from its headwater at the
2,340 feet altitude to the ocean. (Kapaula IFSAR § 1.1, p. 1.)
460. There is a terminal waterfall at the lower end of Kapaula Stream. (Kapaula IFSAR
§ 4.4, p. 44.)
b. Diversions
461. EMI operates a diversion on Kapaula Stream at the Koʻolau Ditch. (Kapaula
IFSAR § 13.1, p. 92.)
c. Gaging stations
462. Two inactive USGS continuous-record stream gaging stations are on Kapaula
Stream. Station 16510000 at the 1,346 feet elevation is upstream from Koʻolau Ditch, and it has
120
streamflow recorded for 40 years. Station 16511000 at the 540 feet elevation is downstream from
Koʻolau Ditch, and it has streamflow recorded for 14 years. (Kapaula IFSAR § 3.3, p. 29.)
463. According to USGS, the natural median baseflow at the upper reach of Kapaula
e. Instream values
464. For Kapaula Stream, the Hawaii Stream Assessment classifies the aquatic
resources as “limited,” meaning a limited number of native species were present. Kapaula
Stream had a poor diversity of native stream animals. A terminal waterfall, reduced streamflow,
and overall substrate of the streambed in the lower reach of Kapaula Stream reduces the amount
of available instream habitat and has restricted those native species that lack climbing ability
from inhabiting the stream. Only the native ʻōpae kalaʻole (Atyoida bisulcata) was recorded and
it was observed in the upper reach. Kapaula Stream rates minimal in comparison to other
watersheds in Maui and statewide. DAR assigns Kapaula a total watershed rating of 6 out of 10,
a total biological rating of 4 out of 10, and a combined overall rating of 3 out of 10. Native

Insect — Anax junius, Anax sp. and Megalagrion sp.
(Kapuala IFSAR § 4.2, pp. 40 and § 4.4, p. 44; Exh. C-144, p. 6.)
121
465. The estimated natural (undiverted) median baseflow of Kapaula Stream is 2.80 cfs
(1.81 mgd). The amount of flow in Kapaula Stream needed to achieve H90 is 1.80 cfs (1.16 mgd).
466. The recreational resources of Kapaula Stream were classified as substantial by the
identified opportunities for fishing related to Kapaula Stream and it was considered to be a high-
quality experience. (Kapuala IFSAR §5 .0, p. 50.)

467. Riparian resources of Kapaula Stream were not classified by the Hawai 1 Stream
within the Koʻolau Forest Reserve. Approximately 36% of Kapaula is classified as non-tidal
palustrine wetlands occurring in the upper slopes of the hydrologic unit. (Kapuala IFSAR § 6.0,
pp. 54-56.)
468. Kapaula Stream is fed by lush native communities of Ohia forests and forested
surrounding the lower reaches of Kapaula Stream is predominately alien forests. Several
waterfalls are located along the lower reach near the mouth of the stream. Numerous spring are
also located along the stream, and some are located near the Hana Highway. The hydrologic unit
lies within two forest reserves, Koʻolau Forest Reserve and Hanawī Natural Area Reserve. The
122
body of water that the stream empties into is adjacent to Waiohue Bay, and both are used for
fishing. (Kapuala IFSAR § 7.0, p. 62.)
v. Navigation
469. No navigation values are present. (Kapuala IFSAR § 8.0, p. 64.)
which is supplied with water from several sources including Kapaula Stream. (Kapuala IFSAR §
9.0, p. 65.)
471. Kapaula Stream does not appear on the 2006 List of Impaired Waters in Hawaiʻi,
Clean Water Act § 303(d). Kapaula Stream is classified as Class lb inland waters from its
subzone “protective.” It should be noted that the conservation subzone map utilized for this
interpretation is general and elevations are not exact. It should also be noted that there is no
direct relationship between elevation and attainment of water quality standards. Marine waters at
the mouth of the hydrologic unit of Kapaula are Class AA waters. (Kapuala IFSAR § 10.0, p.
70.)

472. No non-EMI diversions divert water for domestic or irrigation purposes. The
hydrologic unit of Kapaula. (Kapuala IFSAR § 11.0, p. 72.)
123
rights
present in the hydrologic unit of Kapaula. (Kapuala IFSAR § 12.0, p. 89.)
f. Kuleana users
474. CWRM records for the hydrologic unit of Kapaula indicate that there are no
registered diversions that were declared for taro cultivation. (Kapuala IFSAR § 12.0, p. 80.)
20. Hanawī (6064)
475. The hydrologic unit of Hanawī is located northeast of Haleakala. It covers an area
of 5.6 square miles from the upper slopes of Haleakala at 8,000 feet elevation to the sea. (Hanawī
IFSAR § 1.1, p. 1.)
476. Hanawī Stream is about 7 miles in length, traversing north from its headwater at
the 7,300 feet altitude to the ocean. (Hanawī IFSAR § 1.1, p. 1.)
b. Diversions
477. EMI operates a diversion on Hanawī Stream at the Koʻolau Ditch. (Hanawī
IFSAR § 13.1, p. 97.)
c. Gaging stations
478. Two USGS continuous record stream gaging stations are on Hanawī Stream, one
of which is currently in operation. Active station 16508000 is immediately upstream of the
Koʻolau Ditch at the 1,318 feet altitude. Inactive station 16509000 is downstream of the Koʻolau
Ditch at the 500 feet altitude. Streamflow record for the active station dates back to 1914. Since
124
the station is located upstream of the ditch, streamflow records reflect flows from natural
(undiverted) conditions. (Hanawī IFSAR § 3.3, p. 30.)
479. According to USGS, the natural median baseflow at the upper reach of Hanawī
e. Instream values
480. For Hanawī Stream, the Hawaii Stream Assessment classifies the aquatic
native stream animals were observed in Kopiliʻula Stream, including ʻoʻopu nākea (Awaous
alamoʻo (Lentipes concolor), ʻōpae kalaʻole (Atyoida bisulcata), hīhīwai (Neritina granosa), and
aholehole (Kuhlia xenura). During the most recent surveys, most of these native species were
observed in the lower and middle reaches below the ditch level. ʻOʻopu alamoʻo was abundant in
the middle reach. All these stream animals except the ʻoʻopu akupa were observed in the lower,
middle, and upper reaches in past surveys. Hanawī has a small estuary; however, no estuary
survey was conducted. Hanawī Stream rates high in comparison to other watersheds in Maui and
statewide. DAR assigns Hanawī a total watershed rating of 8 out of 10, a total biological rating
of 8 out of 10, and a combined overall rating of 9 out of 10. Native species observed in the
stream include:
125
Fish — Awaous guamensis, Eleotris sandwicensis, Gobiid sp. Kuhlia sandwicensis,
Kuhlia sp., Kulhia xenura, Lentipes concolor, Sicyopterus stimpsoni, and
Stenogobius hawaiiensis
Insects — Anax junius, Anax sp., Megalagrion blackburni, Megalagrion calliphya,
Megalagrion hawaiiense, Megalgrion nigrohamatum, Megalagrion
pacificum, Megalagrion sp., Procanacae sp., and Telmatogen sp.
Snails — Neritina granosa
(Hanawī IFSAR § 4.2, pp. 42 and § 4.4, p. 46; DAR Report on Hanawī Stream, Maui, Hawaiʻi,
481. The estimated natural (undiverted) median baseflow of Hanawī Stream is 4.60 cfs
(2.97 mgd). The amount of flow in Hanawī Stream needed to achieve H90 is 2.90 cfs (1.87 mgd).
482. Overall, close to 100 percent of the natural habitat for all species in Hanawī
Stream was already maintained below Koolau Ditch under diverted conditions. (Hanawī IFSAR
§ 4.3, p. 44.)
483. The recreational resources of Hanawī Stream were classified as outstanding by
Assessment identified opportunities for camping, hiking, fishing, hunting, swimming, and scenic
views related to Hanawī Stream. Only camping and hunting were not considered to be high-
quality experiences. (Hanawī IFSAR § 5.0, p. 54.)

484. Riparian resources of Hanawī Stream were classified as outstanding by the
Hawaii Stream Assessment. About 74% of the unit lies within the Hanawī Natural Area Reserve,
and 6% within the Koʻolau Forest Reserve and the Haleakala National Park. Nearly 72% of
126
Hanawī is classified as non-tidal palustrine wetlands occurring in the intermediate and upper
slopes of the hydrologic unit. (Hanawī IFSAR § 6.0, pp. 58-60.)
485. Hanawī Stream is fed by lush native communities of Ohia forests and forested
surrounding the lower reaches of the stream is predominately alien forests. A number of
waterfalls are located along the lower reaches of the stream, most of which are followed by a
plunge pool. One of the waterfalls can be viewed from Hana Highway, and another waterfall is
located immediately downstream from the highway. The hydrologic unit lies within two forest
reserves, Koʻolau Forest Reserve and Hanawī Natural Area Reserve. Hanawī Stream empties
into Honolulu Nui Bay, which is a popular fishing location. (Hanawī IFSAR § 7.0, p. 61.)
v. Navigation
486. No navigation values are present. (Hanawī IFSAR § 8.0, p. 68.)
which is supplied with water from several sources including Hanawī Stream. (Hanawī IFSAR §
9.0, p. 69.)
488. Hanawī Stream appears on the 2006 List of Impaired Waters in Hawaii, Clean
Water Act § 303(d). While some data exist for Hanawī Stream, there were not sufficient data for
decision-making; therefore, no decision was made pertaining to the attainment of State of Hawaii
Water Quality Standards or the applicable designated uses. Hanawī Stream is classified as Class
lb inland waters from its headwaters to approximately 1,300 feet elevation, as the surrounding
127
land is in the conservation subzone “protective” and the steam also lies in the Hanawī Natural
Area Reserve and the Koʻolau Forest Reserve. The rest of the stream is classified as Class 2
inland waters. Marine waters at the mouth of the entire hydrologic unit of Hanawī are Class AA
waters. (Hanawī IFSAR § 10.0, pp. 74-75.)

downstream points
489. There are a total of six registered diversions, of which five are EMI diversions.
The one remaining diversion is the Nahiku Pump which was registered by Maui Land & Pine
(MLP) and which is used to pump water from the stream into the Koolau Ditch for transport to
MLP’s Upcountry fields via the EMI System. (Hanawī IFSAR § 11.0, p. 77.)

rights
present in the hydrologic unit of Hanawī. (Hanawī IFSAR § 12.0, p. 94.)
f. Kuleana users
491. CWRM records for the hydrologic unit of Hanawī indicate that there are no
diversions declared for taro cultivation or other domestic purposes. (Hanawī IFSAR § 12.0, p.
88.)
21. Makapipi (6065)
492. The hydrologic unit of Makapipi is located northeast of Haleakala. It covers an
area of 3.3 square miles from the intermediate slopes of Haleakala at 5, l50 feet elevation to the
sea. (Makapipi IFSAR § 1.1, p. 1.)
128
493. Makapipi Stream is about 4.4 miles in length, traversing north from its headwater
at the 3,300 feet altitude to the ocean. (Makapipi IFSAR § 1.1, p. 1.)
494. Makapipi Stream flows directly to the ocean through a cobble beach from a small
waterfall. (DAR Report on Makapipi Stream, Aug. 2009, p. 6; Makapipi IFSAR § 7.0, p. 62.)
495. In 2001, during the dengue fever outbreak, EMI closed its Makapipi Stream
diversion at the request of the State Department of Health (DOH), allowing all of the water to
flow in the natural streambed in order to limit breeding opportunities for mosquitoes. The
diversion was closed from September 20-21, 2001. EMI discovered from the release the
existence of losing reaches below the diversion right below of the Hana Highway Bridge that
caused most of the stream water to disappear into the ground, resulting in more pools of standing
water instead of a continuous flowing stream. Because this defeated the purpose for the releases,
the experiment was terminated and the diversion reopened after two days. (Exh. C-53, p. 1.)
b. Diversions
496. EMI operates a diversion on Makapipi Stream at the Koʻolau Ditch. (Makapipi
IFSAR § 13.1, p. 94.)
c. Gaging stations
497. Three USGS gaging stations are on Makapipi Stream, one of which is a
continuous-record stream gaging station. Station 16507000 is located on Makapipi Stream
upstream from Hana Highway. Station 16506000 measured the amount of water flowing from
the development tunnels into Koʻolau Ditch, and it had 17 years of complete record (1949-1965).
Station 16506500 measured the spring discharge at Makapipi Spring. (Makapipi IFSAR § 3.3, p.
30.)
129
498. According to USGS, the natural median baseflow at the upper reach of Makapipi
is 1.30 cfs (0.70 mgd). (Table attached to Gingerich WDT 10/31/14, p. 1; USGS Regression
Study, p. 60 (Table 11).)
e. Instream values
499. For Makapipi Stream, the Hawaii Stream Assessment classifies the aquatic
native stream animals were observed in Makapipi Stream, including ʻoʻopu naniha (Stenogobius
hawaiiensis), ʻoʻopu nākea (Awaous guamensis), ʻoʻopu akupa (Eleotris sandwicensis), ʻoʻopu
alamoʻo (Lentipes concolor), ʻōpae kalaʻole (Atyoida bisulcata), and aholehole (Kuhlia xenura).
During the most recent surveys, ʻoʻopu alamoʻo was observed in the middle and upper reaches.
ʻŌpae kalaʻole was only observed in the upper reach; although it was recorded to inhabit the
lower and middle reaches of Makapipi Stream. Makapipi has a small estuary; however, no
estuary survey was conducted. Makapipi Stream rates high in comparison to other watersheds in
Maui and statewide. DAR assigns Makapipi a total watershed rating of 8 out of 10, a total
Fish — Awaous guamensis, Eleotris sandwicensis, Gobiid sp., Lentipes concolor,

Kuhlia sandwicensis, Kuhlia sp., and Sicyopterus stimpsoni
Worms — Hirudinean sp.
(Makapipi IFSAR § 4.2, pp. 39 and § 4.4, p. 42; DAR Report on Makapipi Stream, Maui, Hawaiʻi,
130
500. The estimated natural (undiverted) median baseflow of Makapipi Stream is 1.30
cfs (0.84 mgd). The amount of flow in Makapipi Stream needed to achieve H90 is 0.83 cfs (0.54
501. The recreational resources of Makapipi Stream were classified as substantial by
Assessment identified opportunities for hiking, fishing, hunting, swimming, and scenic views
related to Makapipi Stream. Of the four, fishing and scenic view were considered to be a high-
quality experience. (Makapipi IFSAR § 5.0, p. 50.)

502. Riparian resources of Makapipi Stream were not classified by the Hawaii Stream
within the Koʻolau Forest Reserve. Approximately 42% of Makapipi is classified as non-tidal
palustrine wetlands occurring in the intermediate and upper slopes of the hydrologic unit.
(Makapipi IFSAR § 6.0, pp. 54-56.)
503. Makapipi Stream is fed by lush native communities of Ohia forests and forested
wetlands that lie within the Hanawī Natural Area Reserve and Koʻolau Forest Reserve.
Vegetation surrounding the lower reach of the stream is predominately alien forests. Despite a
relatively large number springs located along Makapipi Stream, the stream is intermittent for
most of the year. However with sufficient rainfall, the stream can be seen flowing over a
waterfall (i.e., Makapipi Falls) just below Hana Highway, and the public can only view the
131
waterfall from the top. At other times, the waterfall is usually only a trickle if not dry. Makapipi
Stream empties into Honolulu Nui Bay, which offers opportunities for fishing, crabbing, and
opihi and lobster catching. Nahiku is located off of Hana Highway. At the end of Lower Nahiku
Road is Nahiku Cove. (Makapipi IFSAR § 7.0, p. 62.)
v. Navigation
504. No navigation values are present. (Makapipi IFSAR § 8.0, p. 64.)
which is supplied with water from several sources including Makapipi Stream. (Makapipi IFSAR
§ 9.0, p. 65.)
506. Makapipi Stream does not appear on the 2006 List of Impaired Waters in Hawaiʻi,
Clean Water Act § 303(d). Makapipi Stream is classified as Class lb inland waters from its
headwaters to approximately 1, l00 feet elevation, as the surrounding land is in the conservation
subzone “protective” and the stream also lies in the Hanawī Natural Area Reserve in the
headwaters and then the Koʻolau Forest Reserve in the intermediate reach. Between the 1, l00
feet altitude and the coast, the stream is mostly classified as Class 2 inland waters excepting a
short reach near the 1,000 feet altitude in which the stream lies within the Koʻolau Forest
Reserve and is classified as Class la inland waters. Marine waters at the mouth of the hydrologic
unit of Makapipi are Class AA waters. (Makapipi IFSAR § 10.0, p. 70.)

507. There are a total of three registered diversions, of which one is an EMI diversion.
Of the two remaining registered diversions, one registrant declared water use for domestic
132
purposes, landscaping, and irrigation of three acres of rice, watercress, taro, and aquaculture. The
other registered diversion declared water use for domestic purposes and irrigation of .577 acres
of crops and landscaping. (Makapipi IFSAR § 11.0, p. 72.)

rights
present in the hydrologic unit of Makapipi. (Makapipi IFSAR § 12.0, p. 90.)
f. Kuleana users
509. CWRM records for the hydrologic unit of Makapipi indicate that there are a total
of 3 registered diversions. Two of the diversions were declared for taro cultivation or other
domestic purposes. (Makapipi IFSAR § 12.0, p. 84.)
510. Jeffrey Paisner is the owner of property designated as TMK (2) 1-2-001:018,
which abuts Makapipi Stream. Mr. Paisner lived on the property from 1972 through 1979. In
1979, he moved to New York and entrusted the property to a caretaker. From 1979 until the
present, Mr. Paisner has visited the property from time to time. (Paisner, WDT 12/30/14, 1 5.)
511. Mr. Paisner claims that taro was historically cultivated on his property. Mr.
Paisner bases his claim on conversations with other Nahiku residents about the history of
Nahiku. He has no firsthand knowledge that taro was cultivated on his property. He has never
grown taro on his property. (Paisner, WDT 12/30/14, 1 6; Paisner, Tr., 3/11/15, p. 23, 1. 17 to p.
24, 1. 9.)
133
512. Mr. Paisner also stated that he has found walls and terraces on his property. He
does not know when the walls and terraces on his property were built. (Paisner, tr., 3/11/15, p.
24, 1. 10 to p. 25, l. 2.)
513. Mr. Paisner did not submit evidence demonstrating that any portion of his
property was in taro cultivation at the time of the Great Mahele.
514. Mr. Paisner did not submit evidence describing the size of the loʻi that he claims
were located on his property.
E. Stream Diversions
1. EMI’s Ditch System
515. The Ditch system was constructed in phases, beginning in the 1870s and
extending to the completion of the current system in 1923. (Hew, WDT, 12/30/14, ¶ 5.)
516. From mauka to makai, the major ditches that cross Honopou Stream (the western
boundary of the state lease areas) are the Wailoa Ditch, the New Hamakua Ditch, the Lowrie
Ditch, and the Haiku Ditch. The major ditches that cross Maliko Gulch, the border between
EMI’s ditch system and HC&S’s sugarcane fields, are the Wailoa Ditch, the Kauhikoa Ditch, the
Lowrie Ditch, and the Haiku Ditch. (See Exh. C-33.)
517. Water sold to MDWS from EMI’s Haiku Uka watershed (collected through
MDWS’s Waikamoi Upper Flume and Waikamoi Lower Pipeline, see Exh. C-33, and described,
infra, at FOF 71) is removed east of Honopou Stream and is therefore not captured by the gages
at Honopou and need to be added to the amounts measured at Honopou for total license area
yields. (Hew, WDT, 12/30/14, ¶ 12.)
518. EMI records the amount of water delivered to HC&S at gages in the four ditches
that cross Maliko Gulch. Most of the recorded flows are from the four license areas, which end at
134
Honopou Stream, but some water is collected in streams between Honopou Stream and Maliko
Gulch. (Hew, WDT, 12/30/14, ¶ 24.)
519. The delivery capacity of the EMI system is 450 mgd. The long-term average
delivery by EMI to HC&S has been 165 mgd, but since 1999, deliveries have decreased
significantly, and in the ten year period from 2004-2013, the average delivery was 126 mgd.
(Hew, WDT, 12/30/14, ¶ 23, 30.)
520. The HC&S irrigation system is designed to operate at the maximum extent
possible on gravity flow from higher to lower elevations, so it is critical that the maximum
amount of water possible is taken into the HC&S system at the Wailoa Ditch, the ditch at the
highest elevation, which has a capacity of 195 mgd. (Hew, WDT, 12/30/14, ¶ 28.)
521. When the Wailoa Ditch is filled to capacity, it overflows into the New Hamakua
Ditch via the streams. Once the New Hamakua has reached capacity, it overflows via the streams
into the Lowrie Ditch. And if the Lowrie is filled to capacity, it overflows into the Haiku Ditch
via the streams. (Hew, Tr., 3/18/15, p. 144, ll. 9-21.)
522. Surface water flows from East Maui can fluctuate tremendously from day to day
and cannot be relied on at times to meet the irrigation requirements of HC&S. When the Wailoa
ditch flow is extremely low, the lower ditches have little or no water. (Hew, WDT, 12/30/14, ¶
29.)
523. At Honopou:
a. for the Wailoa Ditch from 1922 to 1987, daily flows ranged from 1.8 to
328 cubic feet per second (cfs), or 1.16 to 212 mgd,12 averaging 108.8
mgd, with flows less than 42.46 mgd for five days out of a year;
12
1 cfs equals 0.6463 mgd.
135
b. for the New Hamakua Ditch from 1918 to 1985, daily flows ranged from
zero to 120.2 mgd, averaging 2.89 mgd, with flows less than 0.27 mgd for
four days out of a year;
c. for the Old Hamakua Ditch from 1918 to 1965, daily flows ranged from
zero to 39.43 mgd, averaging 0.05 mgd, with flows lowest in June and
averaging 0.03 mgd;
d. for the Lowrie Ditch from 1910 to 1985, daily flows ranged from zero to
74.97 mgd, averaging 16.23 mgd, with flows less than 2.72 mgd for five
days out of a year; and
e. for the Haiku Ditch from 1910-1985, daily flows ranged from zero to135.1
mgd, averaging 2.84 mgd, with flows less than 0.36 mgd three days out of
a year. (Exh. C-101, pp. 74-77.)
524. Thus, historically, the combined flows of these ditches at Honopou Stream, the
end of the flows collected from the four license areas, supra, FOF 518, averaged 130.81 mgd,
nearly all from the Wailoa Ditch (108.8 mgd). If we assume that the lowest and highest flows
occurred in the ditches at approximately the same time, the lowest combined flow was 1.16 mgd
(all from the Wailoa Ditch), and the highest flow was 581.52 mgd, supra, FOF 523.
525. There are primarily four ways to reduce the amount of water that is collected and
transported in the EMI ditch system: 1) on streams that have controlled diversions, by closing or
reducing the diversion intake gate openings; 2) on stream diversions that have sluice gates, by
partially or completely opening the sluice gates; 3) on streams that have radial gates between the
diversions and the ditch, by completely closing the radial gates; and 4) by partially or or
completely closing the gates on the main control points on the ditches themselves to limit the
amount of water that can pass each control point, the effect of which is to redirect any excess
water into the stream crossed by the ditch where the control point is located. (Hew, WDT,
10/17/16, ¶ 3.) [HC&S on reopening, FOF 78.]
136
526. Controlled diversions have intake gate openings, which are typically constructed
with wooden boards or metal plates, used to regulate how much water can flow from the stream
into the diversion structure. (Hew, WDT, 10/17/16, ¶ 4.) [HC&S on reopening, FOF 79.]
527. Sluice gates are openings within the basin of the diversions that can be opened to
discharge the water collected in the diversion back into the stream. Periodically opening sluice
gates to flush out silt, gravel, and other debris that collects in the diversion structures is one of
the normal means of maintaining the proper functioning of the ditch system. The effect of
opening a sluice gate is to return water to the stream after it has entered the diversion structure. It
may not always cause 100% of the water that entered the diversion to be discharged back into the
stream, because during periods of heavy rainfall, water may back up in the diversion faster than
it can be discharged through the sluice gate, in which case some water will still enter the ditch.
During most flow conditions, however, completely opening the sluice gate will return practically
all of the water to the stream. (Hew, WDT, 10/17/16, ¶ 5.) [HC&S on reopening, FOF 80.]
528. Radial gates are located along the tunnel reaches of the ditch and were designed to
automatically open or close in relation to the water level in the tunnel. The gates are controlled
by a float located in a float chamber in the tunnel that is connected to a cable that lifts or lowers
the radial gate, depending on the water level in the tunnel. The operation of the gate can be
adjusted by piping water to the float chamber and closing the drain valve on the chamber to raise
the float to maintain the gate in the closed position. (Hew, WDT, 10/17/16, ¶ 6.) [HC&S on
reopening, FOF 81.]
529. There are several main ditch control points on each of the ditches: 1) 6 on the
Koolau Ditch; 2) 4 on the Spreckels Ditch; 3) 3 on the Manuel Luis/Center Ditch; 4) 2 on the
137
Wailoa Ditch/Tunnel; 5) 4 on the New Hamakua Ditch; 6) 3 on the Lowrie Ditch; and 7) 2 on the
Haiku Ditch. (Hew, WDT, 10/17/16, ¶ 7.) [HC&S on reopening, FOF 82.]
530. EMI manages the reduction in diversions through a combination of measures that
involve adjusting the intake control gates on the streams with controlled diversions, opening the
sluice gates at the diversion on streams that have sluice gates, adjusting the operation of radial
gates on the streams that have radial gates, and partially or completely closing the gates on main
ditch control points. The precise combination of measures at any point in time depends on the
amount of water to serve the needs of HC&S and MDWS, and the amount of rainfall that is
occurring in the watersheds that span the ditch system. (Hew, WDT, 10/17/16, ¶ 8.) [HC&S on
reopening, FOF 83.]
531. At the time of the hearing, EMI had closed the intakes on all of the streams with
controlled diversions, opened the sluice gates on the majority of the diversions that have sluice
gates, closed the radial gates on a couple of streams with radial gates, and has closed the 6 main
ditch control points on the Koolau Ditch. The sluice gates have been opened on Nua‘ailua
Stream, Alo Stream, and Waikamoi Stream on the Center Ditch, and three of the four sluice
gates of the main intakes on Honomanū Stream. One of the sluice gates on Honomanū Stream
cannot be opened because it is inoperable, but water is released into the west tributary of
Honomanū Stream (Uluwini Stream) further down at a control gate in the Spreckels Ditch. (Hew,
Tr., 2/6/17, p. 94, ll. 11-23, p. 95, l. 19 to p. 96, l. 12.) [HC&S on reopening, FOF 84.]
532. The effect of these measures is to rely principally on water entering the ditch
system west of Pi‘ina‘au Stream (i.e., from the Honomanū and Huelo license areas) to meet the
current level of reduced needs of HC&S and MDWS. With these measures in place, water flows
138
in the Wailoa Ditch at Maliko Gulch have been reduced to 20-25 mgd. (Hew, WDT, 10/17/16, ¶
9.) [HC&S on reopening, FOF 84.]
533. The Wailoa Ditch is the highest of EMI’s ditches. Nearly all the flows from the
four license areas are from the Wailoa Ditch (83%). When the flow in the Wailoa Ditch is
extremely low, there are little or no flows in the lower ditches. FOF 516-520, supra.)
534. Under drought conditions, a different set of gate adjustments would be
implemented, because EMI expects that it would not be possible to meet even the current
lowered needs without importing water from further east, in the Nahiku and Ke‘anae areas,
where base flows are more reliable and there is a ground water contribution to the Koolau Ditch,
in order to maintain a consistent flow in the Wailoa Ditch. (Hew, WDT, 10/17/16, ¶ 10.) [HC&S
on reopening, FOF 85.]
535. As irrigation requirements increase from the ongoing implementation of
diversified agriculture, EMI expects to implement a selective opening of board gates, readjusting
the opening of sluice gates, resetting of radial gates, and readjusting of main ditch control gates
to increase the amount of water brought into the ditch system. These measures will be dictated
by the flow levels needed at Maliko Gulch and the rainfall patterns throughout the East Maui
watersheds. (Hew, WDT, 10/17/16, ¶ 11.) [HC&S on reopening, FOF 86.]
536. With regard to the implementation of the restoration of the streams that A&B has
stated it will permanently restore, EMI has: 1) closed the intakes and opened the sluice gates on
the diversions on East and West Wailuanui Streams on the Koolau Ditch; 2) opened the sluice
gate on Palauhulu Stream on the Koolau Ditch; 3) opened the sluice gates on the diversions on
Hanehoi and Puolua Streams on the Haiku Ditch; and 4) opened the sluice gate and closed the
radial gate on the Wailoa Ditch, made modifications to the intake on the New Hamakua Ditch,
139
opened the sluice gate and closed the intake diversion on the Lowrie Ditch, and modified the
diversion on the Haiku Ditch on Honopou Stream. (Hew, WDT, 10/17/16, ¶ 12.) [HC&S on
reopening, FOF 87.]
537. Further measures for restoration of these streams cannot be taken until EMI
obtains all necessary permits and government approvals. On September 16, 2016, EMI submitted
its applications to abandon the following stream diversions: Honopou, Hanehoi (Puolua),
Waiokamilo, Kualani,13 Piʻinaʻau, Palauhulu, and East and West Wailuanui Streams. Other
pending approvals and concurrences will be needed from the County of Maui, DLNR’s Office of
Conservation and Coastal Lands, and the U.S. Army Corps of Engineers. (Hew, WDT, 10/17/16,
¶¶ 13-14.) [HC&S on reopening, FOF 88.]
538. The reduction in diversions does not by itself compromise the structural integrity
of the EMI ditch system so long as the complete system, including the open ditches and
roadways, continues to be maintained as a single, coordinated system. Consistently reduced
flows will increase the amount of maintenance required of the open ditches in the system,
because it will increase the surface areas that will need to be periodically cleared of vegetation.
(Hew, WDT, 10/17/16, ¶¶ 15.) [HC&S on reopening, FOF 90.]
2. MDWS
539. MDWS receives water from EMI through:
a. groundwater from a development tunnel in the Koolau Ditch for the

Nahiku community;
13
“Kualani” as used here refers to the easternmost tributary of Waiokamilo Stream, now known
as East Waiokamilo Stream, which was mistaken for Kualani Stream, which is below the
ditch system and not diverted, supra, FOF 57, infra, FOF 308.
140
b. streams in EMI’s Haiku Uka watershed through the upper and lower
Waikamoi flumes that MDWS maintains to serve its Olinda/Upper Kula
and Piiholo water treatment plants;
c. water from the Wailoa Ditch after it enters HC&S’s lands to serve its
Kamole water treatment plant; and
d. non-potable water from HC&S’s Hamakua Ditch at Reservoir 40 to serve

the Kula Agricultural Park. (Hew, WDT, 12/30/14, ¶ 20; Hew, Tr.,
3/18/15, pp. 192-193; David Taylor, WDT, ¶ 7; Exh. C-33.)
540. MDWS diverts stream water directly through its upper and lower Waikamoi
flumes, and receives stream waters from EMI’s Wailoa Ditch and its continuation as HC&S’s
Hamakua Ditch, See Exh. C-33.
541. The upper Waikamoi flume diverts water from the Waikamoi, Puohokamoa, and
Haipuena Streams to the Olinda/Upper Kula water treatment facility. Water for this facility is
stored in the 30-million gallon Waikamoi reservoirs and the 100-million gallon Kahakapao
reservoirs, see Exh. C-33. The Olinda facility’s average daily production is 1.6 mgd, with a
capacity of 2 mgd. (David Taylor, WDT, ¶ 11; Exh. B-3, p. 25; David Taylor, Tr., March 11,
2015, pp. 47, 140.) [MDWS FOF 25.]
542. The lower Waikamoi flume diverts water from the Waikamoi, Puohokamoa,
Haʻipuaʻena and Honomanū Streams to the Piiholo water treatment facility. Water for this
facility is stored in the 50-million gallon Piiholo Reservoir, see Exh. C-33. The Piiholo facility’s
average daily production is 2.5 mgd, with a capacity of 5 mgd. (David Taylor, WDT, ¶ 10; Eh.
B-3, p. 25; David Taylor, Tr., March 11, 2015, p. 47.) [MDWS FOF 24.]
543. The stream flows are variable, so the reservoirs provide storage so that there is a
relatively constant amount of water available to the treatment facilities, regardless of streamflow.
(David Taylor, Tr., March 11, 2015, p. 49.)
141
544. There are no gages on the Waikamoi flumes, so there is no way to measure the
amount of water being diverted from the streams. Because the new upper Waikamoi flume isn’t
going to be leaking, MDWS assumes that everything that goes in will come out. MDWS
measures the reservoir levels every day, so once the new flume is functional, MDWS will be able
to calculate how much water is coming from the flume on days when the main intake from the
dam is dry, which is most of the days. All of the water coming in will be from the flume. (David
Taylor, Tr., March 11, 2015, pp. 59-60; See FOF 835, et seq.)
545. EMI’s Wailoa ditch, which diverts multiple streams (see Exh. C-33 and FOF 60,
supra), is the source of water for MDWS’s Kamole water treatment facility. The Kamole
facility’s average daily production is 3.6 mgd, with a capacity of 6 mgd. This capacity could be
expanded relatively quickly, should MDWS have assurances of greater access to water, as
evidenced by recent upgrades to the ‘Īao Surface Water Treatment Plant. (David Taylor, WDT, ¶
9; Exh. B-3, p. 24; David Taylor, Tr., March 11, 2015, p. 47; Taylor, Supplemental Declaration
on Reopening, ¶¶ 3-9; Exhs. B-073, B-074.) [MDWS FOF 23; MDWS on reopening, FOF 77.]
546. MDWS owns the upper and lower Waikamoi flumes and has a contract with EMI
to service the diversions to keep them clear. MDWS also takes water directly from the Wailoa
ditch. (David Taylor, Tr., March 11, 2015, p. 53.)
547. HC&S’s Hamakua ditch (the western extension of the Wailoa ditch), at reservoir
40 (see Exh. C-33), is the source of water for Kula Agricultural Park, where two reservoirs have
a total capacity of 5.4 million gallons. The Park consists of 31 farm lots which range in size from
7 to 29 acres, and which are owned by the County of Maui. Individual lots are metered and billed
by MDWS. (David Taylor, WDT, ¶ 13; Exh. B-4.) [MDWS FOF 27.]
142
548. MDWS pays EMI $0.06 per thousand gallons ($60/million gallons). (Hew, WDT,
12/30/14, ¶ 21.)
549. The original contract between MDWS and EMI was entered into in 1961, which
was replaced by a 1973 “Memorandum of Understanding” with a term of 20 years. Since its
expiration, there have been a total of 8 extensions. After the lapse of the most recent extension,
EMI has continued to provide water to MDWS through a memorandum dated April 13, 2000.
(David Taylor, WDT, ¶ 15; Exhs. B-5 to 15.) [MDWS FOF 29.]
550. The memorandum provides that MDWS will receive 12 mgd from the Wailoa
ditch with an option for an additional 4 mgd, for a total of 16 mgd. During periods of low flow,
no water will be diverted to lower-elevation ditches, and MDWS will receive a minimum
allotment of 8.2 mgd and HC&S will also receive 8.2 mgd. If these minimum amounts cannot be
delivered, MDWS and HC&S will receive prorated shares of the water available. (David Taylor,
WDT, ¶ 15; Exh. B-5; David Taylor, Tr., March 11, 2015, pp. 53-54; Hew, Tr., March 18, 2015,
pp. 146-147.) [MDWS FOF 30.]
551. Average daily use by MDWS from the Wailoa ditch is 7.1 mgd, which includes
water for the Kamole facility, averaging 3.6 mgd (see FOF 545, supra), and the Kula
Agricultural Park. (David Taylor, Tr., March 11, 2015, pp. 81-83.)
F. Estimates of Stream Flows
552. Prior to the partial restorations of twelve streams in 2008 and 2010 and
subsequent installation of gages in these streams, there were only four active gages, one each in
Hanawī Stream, West Wailuaiki Stream, Waiokamilo Stream, and Honopou Stream (which is
outside the study area to be described, infra). (2005 Flow Study, p.4 and Table 1; Exh. C-101, p.
28; Exh. C-85, 47.)

143
553. Gages had been previously installed on a number of streams for various periods of
time and for various years. For example, Makapipi Stream had a gage at 920 feet elevation
between 1932-1945; Hanawī Stream had gages at 500 feet elevation between 1932-1947 and
again between 1992-1995, and at 1,318 feet elevation between 1914-1915 and again between
1921-Present; and West Wailuaiki Stream had a gage at 1343 feet elevation between 1914-1917
and again between 1921-Present. (2005 Flow Study, Table 1.)
554. In 2002 to 2005, USGS conducted studies to: 1) assess the effects of existing
diversions on flows of perennial streams in northeast Maui, 2) characterize the effects of
diversions on instream temperature variations, and 3) estimate the effects that streamflow
restoration (full or partial) would have on the availability of habitat for native stream fauna (fish,
shrimp and mollusks) in northeast Maui. The study area contained 22 named streams from the
drainage basins of Makapipi Stream in the east to Kōlea Stream to the west (Streams # 1 and #24
in FOF 58, supra). (2005 Flow Study, p. 3.) The first study is summarized in this section. The
second and third studies are summarized in the next section.
555. Stream flows under natural (undiverted) and diverted conditions were estimated
for 2114 streams using a combination of continuous-record gaging-station data, low-flow
measurements, and values determined from regression equations developed for the study. For the
drainage basin for each continuous-record gaged site and selected ungaged sites, morphometric,
geologic, soil, and rainfall characteristics were quantified. Regression equations relating the non-
diverted streamflow statistics to basin characteristics of the gaged basins were developed.
14
No estimates were made for Piinau Stream because the regression equations were not valid
for this stream and reliable flow measurements were lacking (2004 Flow Study, p. 63.)
144
Regression equations were also used to estimate stream flow at selected ungaged diverted and
undiverted sites. (2005 Flow Study, p. 1.)
556. Estimates were made for 50 percent and 95 percent duration total flow (TFQ) and
base flow (BFQ).15 (2005 Flow Study, p. 1.)
557. A 50 percent duration flow (median streamflow; Q50) means that, for a specific
period of time, half of the measured stream flow was greater than the Q50 value, and half was
less. For example, for measurements of total flows in a particular stream for the specified period
of time: 1) if TFQ50 = 25 mgd, then total stream flow was above 25 mgd half of the time and
below 25 mgd half of the time; and 2) if TFQ95 = 2 mgd, total stream flow was above 2 mgd 95
percent of the time and below 2 mgd 5 percent of the time. (2004 Flow Study, p. 4.) [HC&S FOF
2.]
558. Relative errors between observed and estimated flows ranged from 10 to 20
percent for the 50-percent duration total flow and base flow, and from 29 to 56 percent for the
95-percent duration total flow and base flow. (2004 Flow Study, p. 1.) Errors are higher for
lower flows because, for the same absolute error in flow, the relative error in percent increases as
the actual flow decreases. (2005 Flow Study, p. 43.) [HC&S FOF 11.]
559. East of Keanae Valley, the 95-percent duration discharge equation generally
underestimated total flow (TFQ95), due to gains in flow from groundwater discharge, and within
and west of Keanae Valley, the equation generally overestimated total flow, due to loss of water
at lower elevations. (2005 Flow Study, pp. 1, 58.) [HC&S FOF 6.B.]
15
Base flow is the groundwater contribution to flow; total flow includes all sources; i.e.,
ground, freshet (“normal” rainfall) and storm waters.
145
560. An extreme example of the limitations of the model is Piʻinaʻau Stream:
Estimates of flow-duration statistics for Pi‘ina‘au Stream

determined from the regression equations are the highest of
any sites in the study area...yet the flow observations,
although scarce, indicate that flows are much lower than
estimated. The stream channel was dry between 1,200 ft
and 600 ft altitude...and only a trickle of flow was observed
upstream of the 1,300-ft diversion. A recent (2001) large
landslide, which covered the stream at about 1,000 ft
altitude and filled most of the stream channel downstream
to 600 ft altitude with gravel, cobbles, and boulders,
complicates flow in the stream. This basin has the highest
rainfall and MAXELEV (maximum elevation) in the study
area and both are above the range of characteristics used to
develop the flow-duration equations. Because the
regression equations are not valid for this stream and
reliable flow measurements are lacking, no estimates of
stream statistics were made for Piinau Stream. (2005 Flow
Study, p. 63.)
561. Reduction in 50- and 95-percent flows in stream reaches affected by the
diversions throughout the study area averaged 58-60 percent. (2005 Flow Study, p. 1.) Average
reduction in the low flow of streams due to diversions ranged from 55 to 60 percent. (2005 Flow
Study, p. 70; Stephen B. Gingerich, WDT, p. 2.) [Nā Moku/MTF FOF 235.]
G. Habitat Restoration Potential
1. The 2005 Habitat Study
562. The purposes of the second and third studies in 2002 to 2005, supra, FOF 554,
were to characterize the effects of diversions on instream temperature variations, and to estimate
the effects that streamflow restoration (full or partial) would have on the availability of habitat
for native stream fauna (fish, shrimp and mollusks). (Exh. E-69: Gingerich, S.B. and Wolff,
R.H., 2005, “Effects of Surface-Water Diversions on Habitat Availability for Native Macro-
Fauna, Northeast Maui,” Hawaii: U.S. Geological Survey Scientific Investigations Report 2005-
146
5213, 93 pp., referenced by Stephen B. Gingerich, Transcript, March 3, 2015, p. 49 (hereinafter,
“2005 Habitat Study”).)
563. In general, the stream temperatures measured at any of the monitoring sites were
not elevated enough to adversely affect the growth or mortality of native fish, shrimp, and
mollusks or to cause wetland taro to be susceptible to fungi and associated rotting diseases.
(2005 Habitat Study, p. 1.)
564. The Physical Habitat Simulation System (PHABSIM), which incorporates
hydrology, stream morphology and microhabitat preferences, was used to simulate
habitat/discharge relations for various species and life stages, and to provide quantitative habitat
comparisons at different streamflows of interest. Estimates were made of the availability of
aquatic habitat for diverted and undiverted conditions and to produce a relation between
discharge and habitat availability. Habitat-duration curves show the percentage of time that
indicated habitat conditions would be equaled or exceeded and are based on the available
estimates of flow duration at each stream reach developed in the 2005 Flow Study for Q50 and
Q95 of total and base flows. (2005 Habitat Study, pp. 1, 51-52.)
565. The area of usable bed habitat was estimated over a range of streamflows that
includes the diverted and natural base-flow estimates. The results are also presented as habitat
relative to natural conditions with 100 percent of natural habitat at natural median base flow
(BFQ50) and 0 percent of habitat at 0 streamflow. In general, the models show a decrease in
habitat for all species as streamflow is decreased from natural conditions. (2005 Habitat Study,
pp. 51-52.) [Nā Moku/MTF FOF 250.]
566. The relative amount of expected natural habitat (H) expected at 50 percent of
natural median base flow ranges from 70 to 92 percent (H70-92) and maintaining 90 percent of
147
natural median base flow results in 94 to 101 percent of expected natural habitat (H94-101) in the
stream reaches. (2005 Habitat Study, p. 52.)
567. For East Maui streams, it is estimated that 64 percent of natural median base flow
(0.64xBFQ50) is required to provide 90 percent of the natural habitat (H90). The flow
requirements for each stream reach were provided by the USGS in terms of cubic feet per second
(cfs) for all petitioned streams except for Piʻinaʻau, Honopou, and Hanehoi streams. (Stephen B.
Gingerich, WDT, Summary Table.) [Nā Moku/MTF FOF 258.]
568. Many factors that affect the presence of native aquatic species in northeast Maui
were beyond the scope of the USGS study and were not addressed, including:
a. What is the effect of alien species on the migration and living conditions
of the native species?
b. What is the fate of animals upon reaching a dry stream reach during
upstream migration?
c. At what rate and at what locations will native species populations return to
natural levels if diversions were removed?
d. Why were ōpae seen in abundance above the major diversions but oopu
alamoo were not observed at all?
e. To what extent do native and alien species use the diversion ditches and
tunnels for migration between streams?
f. What is the effect of taro loʻi on the migration and life cycles of native
species?
g. What are the effects of stream diversions on native aquatic insect species?
(Stephen B. Gingerich, WDT, pp. 4-5.) [Nā Moku/MTF FOF 256.]
148
2. The 2009 Habitat Availability Study
569. After release of the two USGS reports, USGS provided Commission staff with
relative estimates of the change in aquatic habitat due to surface-water diversions. (Stephen B.
Gingerich, WDT, October 31, 2014, p. 4.)
570. The resulting “2009 Habitat Availability Study” (Glenn R. Higashi, WDT,
Appendix A: Parham, J.E. et al., “The Use of Hawaiian Stream Habitat Evaluation Procedure to
Provide Biological Resource Assessment in Support of Instream Flow Standards for East Maui
Streams,” Bishop Museum and Division of Aquatic Resources, Department of Land and Natural
Resources, November 20, 2009) had four goals:
1. explain the influence of stream diversions on the distribution and habitat

availability of native stream animals;
2. provide documentation of the model’s design, underlying data structure,

and application;
3. show changes in habitat availability for native amphidromous animals on a

stream-by-stream basis; and
4. prioritize habitat and passage restoration actions among the streams of

concern in East Maui.
(Glen R. Higashi, WDT, ¶ 3.) [Nā Moku/MTF FOF 269.]
571. Of the 27 streams that were the subject of this contested case, the 2009 Habitat
Availability Study addressed only the 19 streams remaining after the Commission’s September
25, 2008 order amending the IIFS for 6 of 8 streams, where instream flow for taro cultivation
was the main concern, supra, FOF 8. (Glen R. Higashi, WDT, ¶ 19.) [Nā Moku/MTF FOF 271.]
572. The Study stated that the 19 streams comprised 16 distinct streams and their
tributaries, but only explained that Waiaaka Stream was left out because it was not in DAR’s
stream codes, database, or GIS coverages. Pua‘aka‘a Stream is a tributary of Kopiliula Stream,
149
supra, FOF 58, ft. 9. Wahinepe‘e Stream was left out without explanation. (2009 Habitat
Availability Study, Table 1.)
573. Minimum viable habitat flow (Hmin) for the maintenance of suitable instream
habitat was defined as 64% of Median Base Flow (0.64xBFQ50) (also defined as H90 by USGS
studies, supra, FOF 567), which was expected to produce suitable conditions for growth,
reproduction, and recruitment of native stream animals. (Glen R. Higashi, WDT, Appendix D, p.
4.)
574. Habitat less than H90 was not expected to result in viable flow rates for the
protection of native aquatic biota. There is no linear relationship between the amount of habitat
and the number of animals. H70, or twenty percent less habitat than H90, would not result in only
20 percent less animals; nor would H50, which is twenty percent less than H70, result in only an
additional 20 percent less animals. (Glen R. Higashi, WDT, Appendix D, p. 2.)
575. The 16 streams in the study, with their corresponding numbers in FOF 58, supra,
were:
a. Makapipi Stream,
b. Hanawī Stream,
c. Kapaula Stream,
d. Paʻakea Stream,
e. Waiohue Stream,
f. Kopiliula Stream (and its tributary, Pua‘aka‘a Stream)
g. East Wailuaiki Stream,
h. West Wailuaiki Stream,
i. Ohia Stream,
150
j. Nuaʻailua Stream,
k. Honomanū Stream,
l. Punalau Stream,
m. Haʻipuaʻena Stream,
n. Puohokamoa Stream,
o. Waikamoi Stream,
p. Kōlea Stream.
(Glen R. Higashi, WDT, Appendix A, Table 1.)
576. The Division of Aquatic Resources (“DAR”), recommended the restoration of the
following eight streams, in descending order of habitat units restored:
a. Honomanū Stream: 11.6 kilometers (km) of Habitat Units;
b. Puohokamoa Stream: 7.6 km of Habitat Units;
c. Waikamoi Stream: 5.8 km of Habitat Units;
d. Kopiliula Stream (and its tributary, Pua‘aka‘a Stream): 5.1 km of Habitat
Units;
e. East Wailuaiki Stream: 4.4 km of Habitat Units;
f. West Wailuaiki Stream: 4.0 km of Habitat Units;
g. Makapipi Stream: 3.8 km of Habitat Units; and
h. Hanawī Stream: 3.5 km of Habitat Units.
(Glen R. Higashi, WDT, Appendix B, pp. 3-4.)

577. Flow restoration for these eight streams would result in 45.8 km out of a total of
67.3 km, or 68 percent of the 16 streams. (Glen R. Higashi, WDT, Appendix B, p. 4.)
151
578. Restoration of fish passage and restoration of suitable habitat forming flows at a
small number of key locations can result in large amounts of potential habitat to become
available for native animals. (Glen R. Higashi, WDT, Appendix A, p. 77.)
579. Restoration of an upstream diversion is not useful without first improving
diversions downstream. (Ibid.)
580. DAR recommended that all existing diversions on these eight streams be modified
to increase suitable instream habitat, minimize the entrainment of larvae, and to allow for animal
passage for the recruiting post-larvae. (Glen R. Higashi, WDT, ¶ 8.) [Nā Moku, FOF 278.]
581. DAR also commented that:
a. The restoration of suitable flows to a single stream is more appropriate

than the return of inadequate flows to multiple streams.
b. Restoration of streams should be spread out in a geographic sense. This

will provide greater protection against localized habitat disruptions, a
wider benefit to estuarine and nursery habitat for nearshore marine
species, and result in more comprehensive ecosystem function across the
entire east Maui sector.
(Glen R. Higashi, WDT, Appendix D, p. 3.)
582. DAR later reconsidered its initial list of 8 streams on the basis of:
a. the amount of habitat currently lost to diversions;
b. seasonality (wet versus dry seasons) was considered by setting minimum

connectivity flows in the dry season and minimum habitat flow in the wet
season;
c. issues relating to losing reaches, which eliminated Honomanū and

Makapipi streams;
d. streams most biologically impacted by dewatering;
e. the number and difficulty of modifying diversions;
152
f. the efficient use of water in terms of habitat units restored per cfs of water
returned;
g. whether restoration of stream flow along a given segment of a stream

involved the comingling of stream and ditch waters; and
h. to geographically distribute the streams proposed for restoration across the

entire East Maui ecosystem.
(Glen R. Higashi, WDT, Appendix C, p. 2.)
583. Honomanū and Makapipi streams were eliminated after consultation with
CWRM, USGS and Bishop Museum on the basis of concerns over losing reaches and replaced
with Waiohue and Haipuena streams. DAR’s estimates of the undiverted BFQ50 flows and 64
percent of BFQ50 (H90) flows for the revised list of eight streams were as follows, in order of
DAR’s priority ranking:
Median undiverted base stream flow 64 percent of

below lower most diversion BFQ50, or H90 flows
(Undiverted BFQ50)
East Wailuaiki Stream 7.0 cfs (4.52 mgd) 4.5 cfs (2.91 mgd)
West Wailuaiki Stream 7.0 cfs (4.52 mgd) 4.5 cfs (2.91 mgd)
Puohokamoa Stream 10.5 cfs (6.79 mgd) 6.7 cfs (4.33 mgd)
Waikamoi Stream 6.9 cfs (4.46 mgd) 4.4 cfs (2.84 mgd)
Kopiliula Stream 8.0 cfs (5.17 mgd) 5.1 cfs (3.30 mgd)
Haʻipuaʻena Stream 5.2 cfs (3.36 mgd) 3.3 cfs (2.13 mgd)
Waiohue Stream 6.8 cfs (4.39 mgd) 4.3 cfs (2.78 mgd)
Hanawī Stream no flow recommended, only modification of diversion for
passage
(Glen R. Higashi, WDT, Appendix D, p. 5.)
153
584. For these eight streams, the amounts that would be needed to bring stream flows
under diverted conditions to 64 percent of BFQ50, or the minimum habitat needed for growth,
reproduction, and recruitment of native stream animals, were as follows:
East Wailuaiki Stream: 3.2 cfs (2.07 mgd)

West Wailuiki Stream: 3.5 cfs (2.26 mgd)
Puohokamoa Stream: 5.4 cfs (3.49 mgd)
Waikamoi Stream: 2.6 cfs (1.68 mgd)
Kopiliula Stream: 3.0 cfs (1.94 mgd)
Haʻipuaʻena Stream: 2.5 cfs (1.62 mgd)
Waiohue Stream: 2.7 cfs (1.75 mgd)
Hanawī Stream: modification only of diversion for passage
Total: 22.9 cfs (14.81 mgd)
(Glenn R. Higashi, WDT, Appendix C, Table 1.)
585. Commission staff noted that there was an estimated 35 acres cultivable for taro,
and that Honopou residents do not receive water from a county water system. (Exh. C-85, pp. 11,
13.) There was no explanation on how the 0.82 mgd for taro and domestic diversions would meet
these needs.
586. Nā Moku members claim 6.17 acres for taro cultivation and an additional 17.82
acres for cultivable agriculture, for a total of 23.99 acres fed by Honopou Stream, claiming either
appurtenant or traditional and customary native Hawaiian rights to a sufficient amount of stream
water to irrigate the taro loʻi contained within this acreage. (Exh. A-173.) [Nā Moku FOF 554-
556.]
587. Teri Gomes, Nā Moku’s expert witness, was not able to quantify the portion of a
parcel that was actually farmed in taro nor the percentage of each parcel actually contained in
loʻi or farmed in taro at the time of the Mahele and put the entire parcel in taro when she couldn’t
154
tell what portion was in taro. (Teri Gomes, Tr., March 4, 2015, p. 137; Tr., April 1, 2015, pp. 18,
40.)
588. Gomes also placed the parcel in the cultivable agriculture category when land was
awarded without specificity of use. (Teri Gomes, Tr., April 1, 2015, pp. 19, 32.)
589. On the other hand, HC&S contended that specific locations for properties
currently being used or planned to be used for taro cultivation amounted to only two acres. The
total of 23.99 acres that Nā Moku members claimed was simply the parcels that Lurlyn Scott
described in her Declaration as parcels in which her family has an interest, and are the same
properties that her cousins referenced in their Declarations. (Lurlyn Scott, WDT, ¶ 30; Tr.,
March 4, 2015, p. 193.) [HC&S FOF 111-112.]
590. While not identifying specific acres, Nā Moku contends that insufficient water
and lands that have either appurtenant or riparian rights require that both Hanehoi and Puolua
Streams be returned to their natural base flows (BFQ50): 1) for Hanehoi Stream, 1.64 mgd (2.54
cfs) at the selected ungaged site between the Lowrie and Haiku Ditch; and 2) 0.95 mgd (1.47 cfs)
at the selected ungaged site below the Haiku Ditch for Puolua Stream. This would increase the
IIFS for Hanehoi Stream from 0.74 mgd to 1.64 mgd, and for Puolua Stream, from 0.57 mgd to
0.95 mgd. (Exh. C-85, p. 26.) [Nā Moku/MTF FOF 783-784, 806, 810, 819, 840.]
591. On the other hand, HC&S noted that CWRM identified an estimated cultivable
area of 2.3 acres, and identified two parties who are or who would like to cultivate taro on four
acres, as well as one person who has a parcel adjacent to Hanehoi Stream and would like to
exercise her riparian rights. (Exh. C-85, p. 21; Ernest Schupp, WDT, ¶¶ 3, 9, 13; See generally,
Neola Caveny, WDT; See generally, Solomon Lee, WDT.) [HC&S FOF 154-161.]
155
592. Commission staff identified eight diversions for domestic use, irrigation of taro
and other crops and for livestock, for an estimated cultivable area of 106 acres. The Keanae
complex, with about 107 loʻi, which has decreased by half since 1903, is fed by Palauhulu
Stream. The Keanae Arboretum complex, with 14 loʻi, is fed by Piʻinaʻau Stream. (Exh. C-85, p.
31.)
593. Nā Moku claimed that Palauhulu Stream was the water source for 27.195 acres,
24.595 for taro in Keanae, and an addditional 2.6 acres in cultivable acreage. (Exh. A-173, Teri
Gomes, Tr., April 1, 2015, p. 7.) [Nā Moku/MTF FOF 571-573.]
594. HC&S contends that no person came forth to assert a claim for water from
Piʻinaʻau Stream, and that the entire Keanae loʻi complex comprises only 10.53 acres. (Garret
Hew, WDT, 1/27/15, ¶ 29; Exh. C-108, figure 3, p. 57; Exh. C-109; Exh. C-110.) [HC&S FOF
318-320.]
595. What was thought to be Kualani Stream served as a conduit for the Lakini auwai
system. Water from Waiokamilo Stream was diverted into the Lakini system and joined Kualani
Stream before reaching Dam 1, after which it is diverted for taro cultivation in the Lakini taro
patches and in Wailua Valley further downstream. (Exh. C-85, pp. 45, 47.)
596. After investigation, what was thought to be Kualani Stream is actually the most
eastern tributary of Waiokamilo Stream. (Hew, Tr., April 1, 2015, p. 126; Dean Uyeno, Tr.
March 2, 2015, p. 43.).)
597. The IIFS at Dam 3 was the total flow in the stream without diversions at the
Koolau Ditch, yet the TFQ50 of 3.17 mgd was only half of the 6 mgd that BLNR had ordered
released at the same point in March 2007. (Exh. C-83, p. 46.)
156
598. EMI claimed that it had sealed up all its diversions on Waiokamilo Stream,
including the intake on what was thought was Kualani Stream, and thereby was no longer
diverting any water from Waiokamilo Stream. Dean Uyeno of the Commission staff also stated
that what was thought was Kualani Stream, but now is known as East Waiokamilo Stream, was
not being diverted. (Hew, Tr., March 17, 2015, pp. 125, 128-129; Dean Uyeno, Tr., March 2,
2015, pp. 41-43.)
599. Commission staff estimated that there were 515 cultivable acres with Waiokamilo
Stream as its source. (Exh. C-85, p. 41.)
600. The Wailuanui loʻi complex relies on three different sources of water, two of
which are associated with Waiokamilo Stream and one with Wailuanui Stream. (Exh. C-85, p.
52.)
601. Nā Moku claimed that 60.767 acres, 44.474 acres in taro and 16.293 cultivable
acres, are fed by Waiokamilo and Kualani Streams; 22.448 cultivable taro acres are fed by
Wailuanui and Kualani Streams; and 5 acres in Waianu Valley, between Wailuanui and Keanae,
are fed by Waiokamilo Stream. (Exh. A-173; Isaac Kanoa, WDT, ¶ 6.) [Nā Moku/MTF FOF
595, 606.]
602. Because what was thought was Kualani Stream is actually the east branch of
Waiokamilo Stream, Nā Moku’s revised claim is that 65.767 acres are fed by Waiokamilo
Stream, and 22.448 acres are fed by Wailuanui and Waiokamilo Streams.
603. HC&S states that EMI is no longer diverting Waiokamilo Stream. (Hew, WDT,
1/27/15, ¶ 35; Tr., March 17, 2015, pp. 128-129; Exh. C-52, pp. 56-67; Exh. C-147, pp. 84-96.)
[HC&S FOF 365.]
157
604. There are two declared diversions for taro cultivation with an estimated cultivable
area of 350 acres, but the Wailuanui loʻi complex relies on water from both Waiokamilo and
Wailuanui Streams, and Commission staff had estimated that there were 515 cultivable acres
with Waiokamilo Stream as its source, supra, FOF 599. Therefore, these two areas have
undetermined overlaps, and the total would be less than the sum of the two. (Exh. C-85, p. 52.)
605. As noted earlier, supra, FOF 601, Nā Moku contends that 22.448 acres are fed by
Wailuanui and Waiokamilo Streams.
606. HC&S contends that “the Wailua (Waikani) complex” is the loʻi system that is
irrigated solely with water from Wailuanui Stream, and as of the summer of 2006, it comprised
2.80 acres. Furthermore, HC&S contends that it is now substantially, if not entirely, removed
from taro production despite an increased, consistent flow of 2 to 3 mgd since the Commission’s
2008 decision. (Garret Hew, WDT, 1/27/15, ¶¶ 36-38; Exh. C-108; Norman “Bush” Martin, Tr.,
March 9, 2015, pp. 185-189; Dan Clark, Tr., March 10, 2015, pp. 113-117; Uyeno, December
18, 2014 written report, p. 30.) [HC&S FOF 387-389, 393.]
607. HC&S further contends that the record does not include an adequate breakdown
of the parcels and acreage that Nā Moku has identified as owned by its members in the vicinity
of Wailuanui Stream that may have been previously irrigated with Wailuanui Stream water.
[HC&S FOF 391.]
b. Taro Water Requirements
608. Paul Reppun, a taro farmer who testified as an expert on taro cultivation in the Nā
Wai ʻEhā proceeding as well as in the instant proceeding, had opined that the water requirements
of kalo loʻi ranges from 100,000 to 300,000 gad. (Paul Reppun, WDT, Exh. A, p. 5; Tr., March
4, 2015, p. 43.) [HC&S FOF 84.]

158
609. In the contested case hearing on petitions to amend the IIFS for Nā Wai ʻEhā
streams, the Commission had concluded that on kuleana lands, 130,000 to 150,000 gad of flow-
through water was sufficient for proper kalo cultivation, with 15,000 to 40,000 gad of net loss
between loʻi inflow and outflow from evaporation, transpiration, and percolation through the
bottoms and leakage through the banks, with most of the loss through percolation and leakage.
(Exh. C-120, p. 120, COL 54-56; p. 168, COL 219 (citations omitted).) [HC&S FOF 83.]
610. The Commission’s estimate was based on its finding that the kuleana lands in the
Nā Wai ʻEhā case receive more than 130,000 to 150,000 gad for their kalo loʻi, including the 50
percent of time that no water is needed to flow into the loʻi. This would be equivalent to 260,000
to 300,000 gad for the 50 percent of the time that water is flowing, amounts that would be
sufficient to meet even Reppun’s estimate of 100,000 to 300,000 gad for sufficient flow. (Exh.
C-120, p. 120, COL 56.)
611. In the instant proceeding, Reppun stated that his estimate of 100,000 to 300,000
gad took into account the 50 percent of time that no water is needed (but see FOF 215, 236,
infra) and that any figure can be assumed to be an average resulting from such parameters as
percolation rates, weather, season, location on the stream relative to other diversions, initial
water temperature, and rate of dilution of used water. In addition, it is difficult to estimate the
percentage of time loʻi may not need water as it is dependant on growing phases, water
temperature, weather conditions, and site specific cultivation practices, as such, 50 percent is an
estimation as loʻi cultivation requires continued access to water for all phases of cultivation.
(Paul Reppun, Tr., March 4, 2015, p. 43; WDT, Exh. A, p. 6.)
612. However, the utility of using a general water requirement is questionable, as even
Reppun opined, “there is no one definitive answer.” (Paul Reppun, Tr., March 4, 2015, p.19.)
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613. Reppun’s use of the 100,000 to 300,000 gad figure is predicated on when the taro
needs the most water, not an average over the course of the entire crop cycle, which he had
claimed: “but the important thing is that when it does need the most water, it can be severely--the
crop can be severely damaged if it doesn’t get that. And so it’s that peak period of time, which
during the summer months, during the hottest times, the longest days, also happens to be the time
that everybody else needs the most water, and also the stream needs the most water.” (Paul
Reppun, Tr., March 4, 2015, p. 19.)
614. The temperature of 25°C (77.0°F) is the threshold point at which wetland kalo
becomes more susceptible to fungi and rotting diseases. (Paul Reppun, Tr., March 4, 2015, pp.
27-28; Exh. C-108, p. 1.) [HC&S FOF 86.]
615. Water temperature in a loʻi complex is dependent on variables such as the amount
and temperature of the inflow, the amount of foliage cover, and the size of the complex, and
different factors in a loʻi can contribute to how soon and how quickly taro rot occurs. (Paul
Reppun, Tr., March 4, 2015, pp. 31-33.) [HC&S FOF 88-89.]
616. Reppun participated in a 2007 USGS study designed to collect baseline flow--
what the farmers were actually using--and temperature data from kalo cultivation areas on Kauai,
Oahu, Maui, and Hawaii. “All we did was look at quantities of water and correlate that to
temperature.” (Paul Reppun, Tr., March 4, 2015, p. 26; Exh. C-108.)
617. The area of a loʻi complex included the cultivated and fallow loʻi banks,
pathways, and auwai inside the perimeter of each complex. (Exh. C-108, pp. 5-6.)
618. Water need for kalo cultivation depends on the crop stage, and in order to assure
consistency of the data collected at the various sites, only loʻi with crops near the harvesting
stage (continuous flooding of the mature crop) were selected for water-temperature data
160
collection. Data was collected in the dry season (June - October), when water requirements for
cooling kalo approach upper limits. Flow measurements generally were made during the
warmest part of the day, and temperature measurements were made every 15 minutes at each site
for about a 2-month period. (Exh. C-108, p. 1.)
619. The Maui part of the study measured three areas, all on the windward side: 1)
Waihee, 2) Wailua, and 3) Keanae. (Exh. C-108, p. 43.)
620. Three loʻi complexes in Wailua were studied: Lakini, Wailua, and Waikani.
Lakini and Wailua receive diverted water from Waiokamilo Stream, and Waikani receives
diverted water from Wailuanui Stream. All the active loʻi in Keanae were treated as one
complex, which receives diverted water from Palauhulu Stream. (Exh. C-108, p. 43.)
621. The acreage for these complexes were:
Lakini: 0.74 acres

Wailua: 3.32 acres
Waikani: 2.80 acres
Keanae: 10.53 acres (Exh. C-108, p. 44, Table 5.)
622. The average inflow value for the 19 loʻi complexes across the four islands that
were studied was 260,000 gad, and the median inflow value was 150,000 gad. The average
inflow value for the 17 windward loʻi complexes was 270,000 gad, and the median inflow value
was 150,000 gad. (Exh. C-108, p. 1.)
623. Inflow measurements on July 30, 2006 and on September 21, 2006 were:
Lakini: 750,000 gad and 550,000 gad (for 0.74 acres)

Wailua: 180,000 gad and 140,000 gad (for 3.32 acres)
Waikani: 190,000 and 93,000 gad (for 2.80 acres)
Keanae: 180,000 gad and 150,000 gad (for 10.53 acres) (Exh. C-108, p. 44.)
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624. Of the 17 (of 19) loʻi complexes where water inflow values were measured, only
three had inflow temperatures that rose above 27°C. (Exh. C-108, pp. 1.)
625. Lakini, Wailua, Waikani, and Keanae had inflow temperatures well below 27°C,
with Keanae having the lowest inflow temperature of all loʻi complexes in the study at 20.0°C.
(Exh. C-108, pp. 1, 51, 53, 56, 58.)
626. Outflow temperature was not measured for Wailua, and there was an equipment
malfunction at Keanae. For Lakini, temperatures exceeded 27°C 16.9 percent of the time, with
the earliest time of day at 1015 hours and the latest, at 1800 hours; peak temperatures occurred
between 1300 and 1815 hours. For Waikani, temperatures exceeded 27°C 29.1 percent of the
time, with the earliest time of day at 0000 hours and the latest, at 2345 hours; peak temperatures
occurred between 1400 and 2045 hours. (Exh. C-108, p. 45.)
627. The time that 27°C was exceeded did not occur every day. Although the study did
not summarize these data, the graphs indicate that one-half to two-thirds of the time,
temperatures exceeded 27°C for several hours a day. (Exh. C-108, pp. 51, 56.)
628. Reppun is of the opinion that 77°F is the point at which rot begins to accelerate.
(Paul Reppun, Tr., March 4, 2015, pp. 27-28.)
629. Reppun is of the opinion that the percent of the time that outflows exceed 27°C is
the most important factor. (Paul Reppun, Tr., March 4, 2015, p. 69.)
630. Reppun also opines that the cooler the water that comes into the loʻi, the better,
and the water flowing out of the loʻi should be 25°C or 77°F or less. (Paul Reppun, Tr., March 4,
2015, pp. 51, 62.)
631. Aside from such things as the stage of the crop, temperature of the inflows, the
amount of sunlight, etc., there are management practices that the farmer can engage in to
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maximize the cooling effect of the water. The main one is to increase the depth of the water,
which would increase the cooling capacity of the water. That takes more water. (Paul Reppun,
Tr., March 4, 2015, p. 59.)
632. If you begin to have rot, then you rest your field and change it from a wetland
ecosystem to a dry land ecosystem. (Paul Reppun, Tr., March 4, 2015, p. 33.)
633. Questioned on the 0.74-acre Lakini loʻi complex using 550,000 to 750,000 gad,
supra, FOF 621, 623, Reppun was of the opinion that the capacity of that amount of water was
enormous relative to the size of the area, that the water was not going to heat up very much at all,
and that the amount was more than adequate. (Paul Reppun, Tr., March 4, 2015, p. 73.)
634. Reppun’s opinion that taro water requirements are approximately 100,000 to
300,000 gad does not mean that these amounts are daily averages during a crop cycle, but an
approximation of the amount required when maximum inflow is required to prevent rot. Nor is
100,000 to 300,000 gad the maximum of the amount so required. Reppun’s principal point is that
when loʻi waters are most susceptible to reach temperatures that accelerate rot, sufficient inflow
waters need to be available to keep water temperatures below the threshold for rot.
c. Acreage in Taro
635. In total, the acreage claimed by Nā Moku as being either in taro or cultivable
agriculture was 136.18 acres for Honopou, Palauhulu, Waiokamilo, and Wailuanui Streams,
supra, FOF 586, 593, 601, and 602.16 (Teri Gomes, Tr., April 1, 2015, p. 11, 13.)
16
The total acreage under FOF 586, 593, 601, and 602 is 139.4 acres, but there is some overlap
because some acres are fed by both Waokamilo and Wailuanui Streams, supra, FOF 601-
602.
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636. Nā Moku identified no acreage for Hanehoi and Puolua Streams, but contended
that insufficient water and lands that have either appurtenant or riparian rights require that both
Hanehoi and Puolua Streams be returned to their natural base flows (BFQ50), supra, FOF 590;
while HC&S noted that the Commission identified an estimated cultivable area of 2.3 acres, and
identified two parties who are or who would like to cultivate taro on four acres, as well as one
person who has a parcel adjacent to Hanehoi Stream and would like to exercise her riparian
rights, supra, FOF 591.
637. Teri Gomes, Nā Moku’s expert witness, put the entire parcel in taro when she
couldn’t tell what portion was in taro. In her previous testimony, before the BLNR, she had
reduced the acreage by 10 percent, but was not instructed to do so in the present contested case.
(Teri Gomes, Tr., April 1, 2015, pp. 14, 18, 40.)
awarded without specificity of use, because most parcels awarded at the time of the Mahele were
used for agricultural purposes and she had already eliminated house lots, cemeteries, and
churches. (Teri Gomes, Tr., April 1, 2015, pp. 19, 32.)
639. Therefore, Nā Moku’s own expert witness conceded that these acreages are
overstated by an unknown amount for taro cultivation and cultivable agriculture.
d. Revised IIFS to Meet Taro Water Needs
640. The Commission’s order identified the acreage of taro for each stream through the
undocumented declarations of registered diverters, with a total of 1,006 acres plus water for
domestic needs, supra, FOF 585, 132, 592, 599 and 604, but did not attempt to evaluate these
claims nor relate these acres to the amount of water added to the streams in the revised IIFS.
641. Different reference flows were used to amend the IIFS. (Exhs. C-85 and C-90.)
164
642. Commission staff stated that their efforts were based on looking at the lower Q
values, the low flow values, in order to make sure that it would always be met, to make sure that
the downstream users would always have a set amount of water, and conceded that such an
approach could amend the IIFS lower than what taro farmers might need. (Dean Uyeno, Tr.,
March 2, 2015, p. 122.)
e. Habitat Improvement
643. For East Maui streams, it is estimated that 64 percent of natural median base flow
(BFQ50) would be required to provide 90 percent of the natural habitat (H90), supra, FOF 567,
which is expected to produce suitable conditions for growth, reproduction, and recruitment of
native stream animals, supra, FOF 573.
644. Habitat less than H90 would not result in viable flow rates for the protection of
native aquatic biota. There is no linear relationship between the amount of habitat and the
number of animals. H70, or twenty percent less habitat than H90, would not result in only 20
percent less animals; nor would H50, which is twenty percent less than H70, result in only an
additional 20 percent less animals, supra, FOF 574.
H. Instream Uses
645. Beneficial instream uses for significant purposes are located in the stream and
achieved by leaving the water in the stream. They include, but are not limited to:
a. maintenance of fish and wildlife habitats
b. outdoor recreational activities;
c. maintenance of ecosystems such as estuaries, wetlands, and stream

vegetation;
d. aesthetic values such as waterfalls and scenic waterways;
e. navigation;
165
f. instream hydropower generation;
g. maintenance of water quality;
h. the conveyance of irrigation and domestic water supplies to downstream

points of diversion; and
i. the protection of traditional and customary Hawaiian rights.
(HRS § 174C-3.)
646. “Navigation” and “instream hydropower generation (emphasis added)” are not
relevant to the East Maui streams. (Supra, FOF 107, 108, 144, 145, 173, 174, 190, 191, 208, 209,
225, 226, 242, 243, 258, 259, 276, 277, 301, 302, 319, 320, 341, 342, 365, 366, 381, 382, 404,
405, 420, 421, 436, 437, 452, 453, 469, 470, 486, 487, 504, 505.)
647. “Maintenance of fish and wildlife habitats” has been addressed, supra, in section
I.F (habitat restoration potential). (Supra, FOF 101, 102, 103, 138, 139, 140, 167, 168, 169, 185,
186, 203, 204, 220, 221, 237, 238, 253, 254, 271, 272, 296, 297, 314, 315, 336, 337, 360, 361,
376, 377, 396, 397, 398, 399, 400, 415, 416, 431, 432, 447, 448, 464, 465, 480, 481, 482, 499,
500, 501.)
648. That portion of stream flows to satisfy appurtenant rights is included in “the
conveyance of irrigation and domestic water supplies to downstream points of diversion,” and is
an instream use. The exercise of appurtenant rights is a noninstream use, because it is carried out
on appurtenant lands and not within the streams from which those appurtenant rights are derived.
(Supra, FOF 110, 147, 176, 193, 211, 228, 245, 261, 279, 304, 322, 344, 368, 384, 407, 423,
439, 455, 472, 489, 507.)
649. “Outdoor Recreational Activities”: From east to west, Makapipi, Hanawī,
Waiohue, East Wailuaiki, West Wailuaiki, Wailuanui, Waiokamilo, Ohia, Honomanū,
Waikamoi, Hanehoi, and Honopou streams have significant outdoor recreational activities,
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including in some cases swimming and/or fishing, and nearly all including scenic views for
recreational and sometimes for educational purposes. (Makapipi IFSAR § 5.0, p. 50; Exh. A-1;
Hanawī IFSAR § 5.0, p. 54; Lucien De Naie, WDT; East Wailuaiki IFSAR § 5.0, p. 52; West
Wailuaiki IFSAR § 7.0, p. 56; Wailuanui IFSAR § 5.0, pp. 43-44; Waiokamilo IFSAR § 5.0, p.
40; Ohia IFSAR § 5.0, p. 43; Honomanū IFSAR § 5.0, p. 56; Camp, WDT; Exh. E-71; Neola
Caveny, WDT; Exh. E-24; Lurlyn Scott, WDT, ¶¶ 24-25; Julien P. Allen Jaccintho, WDT ¶ 9.
[HC&S FOF 264, 334, 354, 378, 406, 427, 553, 576; Nā Moku FOF 387, 396, 404, 405, 414,
416, 420-423, 428, 435, 438, 440.]
650. “Maintenance of Ecosystems Such as Estuaries, Wetlands, and Stream
Vegetation”: From east to west, all of the streams except Waiaaka and Ohia Streams have
seasonal, non-tidal palustrine wetlands, in the upper watershed of the hydrologic unit. East
Wailuaiki, West Wailuaiki, and Waiohue Streams also have estuaries. (Waiaaka IFSAR § 6.0,
pp. 51-53; Ohia IFSAR § 6.0, pp. 46-48; Exh. C-103, p. 19.) [HC&S FOF 421, 433, 466, 513.)
651. “Aesthetic Values Such as Waterfalls and Scenic Waterways”: Waterfalls, some
including plunge pools at their base, and to a lesser extent, springs, constitute the principal
aesthetic values in the East Maui streams. From east to west, the streams include Makapipi,
Hanawī, Kapaula, Waiaaka, Paʻakea, Waiohue, Kopiliula, West Wailuaiki, East Wailuaiki,
Wailuanui, Waiokamilo, Palauhulu, Piʻinaʻau, Honomanū, Punalau, Haʻipuaʻena, Puohokamoa,
Waikamoi, and Honopou. (Makapipi IFSAR § 7.0, p. 62; Hanawī IFSAR § 7.0, p. 61; Kapaula
IFSAR § 7.0, p. 62; Waiaaka IFSAR § 7.0, p. 59; Paakea IFSAR § 7.0, p.64; Waiohue IFSAR §
7.0, p. 64; Kopiliula IFSAR § 7.0, p. 67; East Wailuaiki IFSAR § 7.0, p. 64; West Wailuaiki
IFSAR § 7.0, p. 63; Wailuanui IFSAR § 7.0, p. 56; Waiokamil59;o IFSAR § 7.0, p. 52;
Palauhulu IFSAR § 7.0, p. 55; Honomanū IFSAR § 7.0, p. 69; Punalau IFSAR § 7.0, p. 59;
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Ha‘ipua‘ena IFSAR § 7.0, p. 65; Puohokamoa IFSAR § 7.0, p. 66; Waikamoi IFSAR § 7.0, p.
72; Exh. C-101, p. 48.) [HC&S FOF 103, 182, 203, 226, 246, 266, 309, 356, 380, 408, 429, 453,
474, 494, 514, 535, 555, 578.]
652. “Maintenance of Water Quality”: Streams that appear on the 2006 List of
Impaired Waters in Hawaii, Clean Water Act § 303(d), include, from east to west, Hanawī,
Pua‘aka‘a, East Wailuaiki, West Wailuaiki, Ohia, Honomanū, Punalau, Haʻipuaʻena,
Puohokamoa, and Waikamoi streams. (Hanawī IFSAR § 10.0, pp. 74-75; Pua‘aka‘a IFSAR §
10.0, pp. 75-76; East Wailuaiki IFSAR § 10.0, pp. 71-72;West Wailuaiki IFSAR § 10.0,pp. 70-
71; Ohia IFSAR § 10.0, pp. 57-58; Honomanū IFSAR § 10.0, pp. 76-78; Punalau IFSAR § 10.0,
pp. 65-66, 74; Ha‘ipua‘ena IFSAR § 10.0, pp. 72-74; Puohokamoa IFSAR § 10.0, p. 4;
Waikamoi IFSAR § 10, pp. 80-81.) [HC&S FOF 185, 206, 229, 249, 269, 339, 411, 432, 456,
558.]
653. “Conveyance of irrigation and domestic water supplies to downstream points of
diversion.” Commission staff identified Puohokamoa, Ha‘ipuaʻena, and Kopiliula as streams
being used for conveyance. (Exh. C-91, p. 20.)
654. During the contested case hearing, Garrett Hew of EMI testified that there is no
identification of particular conveyance streams. If storm waters overflow a ditch, the water goes
into the stream and then hits the next ditch downstream. There are no actual conveyance ditches
or designated conveyance streams in the system. (Hew, Tr. March 18, 2015, pp. 144-45.)
655. The conveyance of irrigation and domestic water supplies to downstream points
of diversion includes water conveyed for use within the hydrologic unit for domestic and
irrigation uses. This does not include the diversion of water by EMI or MDWS. This use was
identified through registered diversions for the stated purpose of domestic or irrigation use.
168
Streams identified on this basis include: Honopou, Hanehoi, Waikamoi, Haʻipuaʻena,
Honomanū, Nuaʻailua, Piʻinaʻau, Ohia, Waiokamilo, Waiohue, and Makapipi. (Honopou IFSAR
§ 11, p. 62; Hanehoi IFSAR § 11, p. 59; Waikamoi IFSAR § 11, p. 83; Ha‘ipua‘ena IFSAR § 11,
p. 75; Honomanū IFSAR § 11, p. 80; Nua‘ailua IFSAR § 11, p. 72; Pi‘ina‘au IFSAR § 11, p. 71;
Ohia IFSAR § 11, p. 60; Waiokamilo IFSAR § 11, p. 66; Waiohue IFSAR § 11, p. 74; and
Makapipi IFSAR § 11, p. 72.)
1. Protection of Traditional and Customary Native Hawaiian Rights
656. Maintenance of fish and wildlife habitats to enable gathering of stream animals
and increased flows to enable the exercise of appurtenant rights constitute the instream exercise
of “traditional and customary native Hawaiian rights.”
a. Gathering and fishing
657. Nā Moku members and their ʻohana traditionally gathered ʻawapuhi, bamboo
shoot, ferns, frogs, goldfish, guava, haha, hau, hibiscus, hīhīwai, java plum, kalo, lilikoi, lūʻau,
maiʻa, mango, medicinal plants, mountain apple, olena, ʻoʻopu, ʻōpae, oranges, pakalana, pipi,
pohole, plumeria, puakenikeni, pupu loʻi, rosy apple, strawberry guava, tamarind, tī leaf, ‘uala
(sweet potato), ʻulu, watercress, pepeiau and other fish in Honopou, Waikamoi, Alo,
Wahinepe‘e, Puohokamoa, Ha‘ipua‘ena, Punalau/Kōlea, Honomanū, Nua‘ailua, Pi‘ina‘au,
Palauhulu, ʻŌhi‘a/Waianu, Waiokamilo, Kualani, Wailua, Waikani (Wailuanui), West Wailuaiki,
East Wailuaiki, Kopiliula, Pua‘aka‘a, Pa‘akea, Waiaaka, Kapaula, Hanawī, Makapipi, and
Waiohue. (Aja Akuna, WDT, 12/30/14, ¶¶ 6, 7; ʻAwapuhi Carmichael, WDT, 12/30/14, ¶¶ 9, l0;
Carl Wendt, WDT, 12/30/14, ¶¶ 6,7; Charles Barclay, WDT, 12/30/14, ¶ 5; Darrell Aquino,
WDT, 12/30/14, ¶¶ 9, 11; Earl Smith, Sr., WDT, 12/30/14, ¶ 5; Edward Wendt, WDT, 12/30/14,
¶¶ 7, 8; Emily Wendt, WDT, 12/30/14, ¶¶ 14, 15, 17; Harry Hueu, WDT, 12/30/14, ¶¶ 9, 10;
169
Healoha Carmichael, WDT, 12/30/14, ¶¶ 6, 7; Ire Kimokeo, WDT, 12/30/14, ¶¶ 6,7; Isaac
Kanoa, WDT, 12/30/14, ¶¶ 8, 9; James Kimo Kaaa, WDT, 12/30/14, ¶ 7; Jerome K. Kekiwi, Jr.,
WDT, 12/30/14, ¶¶ 7, 8; Joseph “Jojo” Young, WDT, 12/30/14, ¶¶ 7, 8; Jonah Kuponoikeauea
Hueu, WDT, 12/30/14, ¶¶ 6, 7; Jonah Jacintho, WDT, 12/30/14, ¶¶ 6, 7; Joseph Kimo Day,
WDT, 12/30/14, ¶¶ 7, 8; Juliana P. Allen Jacintho, WDT, 12/30/14, ¶¶ 6, 7; Leonora Barclay,
WDT, 12/30/14, ¶¶ 8, 9; Lezley Jacintho, WDT, 12/30/14, ¶¶ 7, 8; Lurlyn Scott, WDT, 12/30/14,
¶¶ 10, 11, 12; Norman “Bush” Martin, WDT, 12/30/14, ¶¶ 8, 9; Pualani Kimokeo, WDT,
12/30/14, ¶¶ 11, 12; Sanford Kekahuna, WDT, 12/30/14, ¶¶ 5, 6; Solomon Kaauamo, WDT,
12/30/14, ¶¶ 8, 9; Steven Hoʻokano, WDT, 12/30/14, ¶¶ 9, 10; Terrance P.K. Akuna, WDT,
12/30/14, ¶¶ 8, 9.)
658. Nā Moku members and their ʻohana traditionally fished for aholehole, aku, akule,
‘anae, ʻawa, aweoweo, crab, enenue, ha‘uke‘uke, heʻe, hināleʻa, honu, kala, kole, kumu, kūpe‘e
puʻu, kūpīpī, lae, lobster, menpachi, moanakali, moi, nikiniki, nohu, ʻōʻio, ʻopihi, ‘ōmilu,
paananu, pakaawa, pala, pīlali, pāpio, pipipi, poʻopaʻa, puhi, uau, ūhā, uhu, ʻuku, ulua, ‘uʻu,
wana, and weke, in or near the mouths of in Honopou, Waikamoi, Alo, Wahinepe‘e,
Puohokamoa, Ha‘ipua‘ena, Punalau/Kōlea, Honomanū, Nua‘ailua, Pi‘ina‘au, Palauhulu,
ʻŌhi‘a/Waianu, Waiokamilo, Kualani, Wailua, Waikani (Wailuanui), West Wailuaiki, East
Wailuaiki, Kopiliula, Pua‘aka‘a, Paakea, Waiaaka, Kapaula, Hanawī, Makapipi, and Waiohue.
(Aja Akuna, WDT, 12/30/14, ¶¶ 6, 7; ʻAwapuhi Carmichael, WDT, 12/30/14, ¶¶ 9, l0; Carl
Wendt, WDT, 12/30/14, ¶¶ 6,7; Charles Barclay, WDT, 12/30/14, ¶ 5; Darrell Aquino, WDT,
12/30/14, ¶¶ 9, 11; Earl Smith, Sr., WDT, 12/30/14, ¶ 5; Edward Wendt, WDT, 12/30/14, ¶¶ 7,
8; Emily Wendt, WDT, 12/30/14, ¶¶ 14, 15, 17; Harry Hueu, WDT, 12/30/14, ¶¶ 9, 10; Healoha
Carmichael, WDT, 12/30/14, ¶¶ 6, 7; Ire Kimokeo, WDT, 12/30/14, ¶¶ 6,7; Isaac Kanoa, WDT,
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12/30/14, ¶¶ 8, 9; James Kimo Kaaa, WDT, 12/30/14, ¶ 7; Jerome K. Kekiwi, Jr., WDT,
12/30/14, ¶¶ 7, 8; Joseph “Jojo” Young, WDT, 12/30/14, ¶¶ 7, 8; Jonah Kuponoikeauea Hueu,
WDT, 12/30/14, ¶¶ 6, 7; Jonah Jacintho, WDT, 12/30/14, ¶¶ 6, 7; Joseph Kimo Day, WDT,
12/30/14, ¶¶ 7, 8; Juliana P. Allen Jacintho, WDT, 12/30/14, ¶¶ 6, 7; Leonora Barclay, WDT,
12/30/14, ¶¶ 8, 9; Lezley Jacintho, WDT, 12/30/14, ¶¶ 7, 8; Lurlyn Scott, WDT, 12/30/14, ¶¶ 10,
11, 12; Norman “Bush” Martin, WDT, 12/30/14, ¶¶ 8, 9; Pualani Kimokeo, WDT, 12/30/14, ¶¶
11, 12; Sanford Kekahuna, WDT, 12/30/14, ¶¶ 5, 6; Solomon Kaauamo, WDT, 12/30/14, ¶¶ 8, 9;
Steven Hoʻokano, WDT, 12/30/14, ¶¶ 9, 10; Terrance P.K. Akuna, WDT, 12/30/14, ¶¶ 8, 9.)
659. Currently, Nā Moku members and their ʻohana gather achote, avocado, bamboo
shoots, ferns, flowers, goldfish, guava, haha, hīhīwai, kalo, maiʻa (banana), limu, lūʻau, mango,
mountain apple, ʻoʻopu, ʻōpae, oranges, papaya, pohole, prawns, puakenikeni, pupu lo‘i, sugar
cane, tī leaf, ʻulu, watercress, pepeiau and other fish in Honopou, Waikamoi, Alo, Wahinepe‘e,
Puohokamoa, Ha‘ipua‘ena, Punalau/Kōlea, Honomanū, Nua‘ailua, Pi‘ina‘au, Palauhulu,
ʻŌhi‘a/Waianu, Waiokamilo, Kualani, Wailua, Waikani (Wailuanui), West Wailuaiki, East
Wailuaiki, Kopiliula, Pua‘aka‘a, Paakea, Waiaaka, Kapaula, Hanawī, Makapipi, and Waiohue.
(Aja Akuna, WDT, 12/30/14, ¶¶ 9, 10; ʻAwapuhi Carmichael, WDT, 12/30/14, ¶ 13; Darrell
Aquino, WDT, 12/30/14, ¶¶ 13, 15; Earl Smith, Sr., WDT, 12/30/14, ¶¶ 8, 9; Edward Wendt,
WDT, 12/30/14, ¶ 10; Emily Wendt, WDT, 12/30/14, ¶ 27; Harry Hueu, WDT, 12/30/14, ¶¶ 13,
14; Healoha Carmichael, WDT, 12/30/14, ¶¶ 9, 10; Ire Kimokeo, WDT, 12/30/14, ¶¶ 9, 10; Isaac
Kanoa, WDT, 12/30/14, ¶¶ 10, 11; Jerome K. Kekiwi, Jr., WDT, 12/30/14, ¶¶ 10, 11; Joseph
“Jojo” Young, WDT, 12/30/14, ¶ 10; Jonah Kuponoikeauea Hueu, WDT, 12/30/14, ¶¶ 9, 10;
Jonah Jacintho, WDT, 12/30/14, ¶¶ 10, 11; Joseph Kimo Day, WDT, 12/30/14, ¶¶ 10, 11; Juliana
P. Allen Jacintho, WDT, 12/30/14, ¶¶ 12, 13; Leonora Barclay, WDT, 12/30/14, ¶ 11; Lezley
171
Jacintho, WDT, 12/30/14, ¶¶ 10, 11; Lurlyn Scott, WDT, 12/30/14, ¶¶ 20, 21; Norman “Bush”
Martin, WDT, 12/30/14, ¶¶ 11, 12; Pualani Kimokeo, WDT, 12/30/14, ¶ 14; Sanford Kekahuna,
WDT, 12/30/14, ¶¶ 9, 10; Solomon Kaauamo, WDT, 12/30/14, ¶¶ 11, 12; Steven Hoʻokano,
WDT, 12/30/14, ¶ 13; Terrance P.K. Akuna, WDT, 12/30/14, ¶¶ 11, 12.)
660. Currently, Nā Moku members and their ʻohana fish for aholehole, aku, akule,
ʻahi, ‘anae, aweoweo, enenue, ha‘uke‘uke, heʻe, hināleʻa, kala, kole, kumu, kūpe‘e, kūpīpī, lae,
lobster, mahimahi, manini, menpachi, moi, mullet, nikiniki, noho, ʻōʻio, omilu, ʻopihi, paananui,
palani, pāpio, pipipi, poʻopaʻa, puhi, uouoa, ūhā, uhu, and ulua, in or near the mouths of in
Honopou, Waikamoi, Alo, Wahinepe‘e, Puohokamoa, Ha‘ipua‘ena, Punalau/Kōlea, Honomanū,
Nua‘ailua, Pi‘ina‘au, Palauhulu, ʻŌhi‘a/Waianu, Waiokamilo, Kualani, Wailua, Waikani
(Wailuanui), West Wailuaiki, East Wailuaiki, Kopiliula, Pua‘aka‘a, Paakea, Waiaaka, Kapaula,
Hanawī, Makapipi, and Waiohue. (Aja Akuna, WDT, 12/30/14, ¶¶ 9, 10; ʻAwapuhi Carmichael,
WDT, 12/30/14, ¶ 13; Darrell Aquino, WDT, 12/30/14, ¶¶ 13, 15; Earl Smith, Sr., WDT,
12/30/14, ¶¶ 8, 9; Edward Wendt, WDT, 12/30/14, ¶ 10; Emily Wendt, WDT, 12/30/14, ¶ 27;
Harry Hueu, WDT, 12/30/14, ¶¶ 13, 14; Healoha Carmichael, WDT, 12/30/14, ¶¶ 9, 10; Ire
Kimokeo, WDT, 12/30/14, ¶¶ 9, 10; Isaac Kanoa, WDT, 12/30/14, ¶¶ 10, 11; Jerome K. Kekiwi,
Jr., WDT, 12/30/14, ¶¶ 10, 11; Joseph “Jojo” Young, WDT, 12/30/14, ¶ 10; Jonah
Kuponoikeauea Hueu, WDT, 12/30/14, ¶¶ 9, 10; Jonah Jacintho, WDT, 12/30/14, ¶¶ 10, 11;
Joseph Kimo Day, WDT, 12/30/14, ¶¶ 10, 11; Juliana P. Allen Jacintho, WDT, 12/30/14, ¶¶ 12,
13; Leonora Barclay, WDT, 12/30/14, ¶ 11; Lezley Jacintho, WDT, 12/30/14, ¶¶ 10, 11; Lurlyn
Scott, WDT, 12/30/14, ¶¶ 20, 21; Norman “Bush” Martin, WDT, 12/30/14, ¶¶ 11, 12; Pualani
Kimokeo, WDT, 12/30/14, ¶ 14; Sanford Kekahuna, WDT, 12/30/14, ¶¶ 9, 10; Solomon
172
Kaauamo, WDT, 12/30/14, ¶¶ 11, 12; Steven Hoʻokano, WDT, 12/30/14, ¶ 13; Terrance P.K.
Akuna, WDT, 12/30/14, ¶¶ 11, 12.)
661. If there was more water in the streams Nā Moku members and their ʻohana would
gather and fish as their families traditionally did. (Aja Akuna, WDT, 12/30/14, ¶¶ 17, 18;
ʻAwapuhi Carmichael, WDT, 12/30/14, ¶ 17; Carl Wendt, WDT, 12/30/14, ¶ 14; Darrell Aquino,
WDT, 12/30/14, ¶¶ 21, 22; Edward Wendt, WDT, 12/30/14, ¶ 16; Harry Hueu, WDT, 12/30/14,
¶ 23; Healoha Carmichael, WDT, 12/30/14, ¶¶ 16, 18; Ire Kimokeo, WDT, 12/30/14, ¶¶ 17; 18;
Isaac Kanoa, WDT, 12/30/14, ¶ 18; James Kimo Kaaa, WDT, 12/30/14, ¶ 17; Jerome K. Kekiwi,
Jr., WDT, 12/30/14, ¶ 18; Joseph “Jojo” Young, WDT, 12/30/14, ¶ 15; Jonah Kuponoikeauea
Hueu, WDT, 12/30/14, ¶ 12; Jonah Jacintho, WDT, 12/30/14, ¶ 19; Joseph Kimo Day, WDT,
12/30/14, ¶¶ 18, 19; Juliana P. Allen Jacintho, WDT, 12/30/14, ¶ 19; Leonora Barclay, WDT,
12/30/14, ¶ 18; Lezley Jacintho, WDT, 12/30/14, ¶¶ 20, 21; Lurlyn Scott, WDT, 12/30/14, ¶ 66;
Norman “Bush” Martin, WDT, 12/30/14, ¶ 21; Pualani Kimokeo, WDT, 12/30/14, ¶ 22; Sanford
Kekahuna, WDT, 12/30/14, ¶ 17; Solomon Kaauamo, WDT, 12/30/14, ¶¶ 19, 20; Steven
Hoʻokano, WDT, 12/30/14, ¶¶ 20, 21; Terrance P.K. Akuna, WDT, 12/30/14, ¶ 19.)
b. Exercise of Appurtenant Rights
662. In total, the acreage claimed by Nā Moku as being either in taro or cultivable
agriculture was 136.18 acres for Honopou, Palauhulu, Waiokamilo, and Wailuanui Streams,
supra, FOF 635.
663. Nā Moku identified no acreage for Hanehoi and Puolua Streams but contended
that sufficient water and lands that have either appurtenant or riparian rights require that both
Hanehoi and Puolua Streams be returned to their natural base flows (BFQ50), supra, FOF 636.
173
664. Teri Gomes, Nā Moku’s expert witness, conceded that these acreages are
overstated by an unknown amount for taro cultivation and cultivable agriculture, supra, FOF
639. She put the entire parcel in taro when she couldn’t tell what portion was in taro. In her
previous testimony before BLNR, she had reduced the acreage by 10 percent, but was not
instructed to do so in the present contested case, supra, FOF 637. She also placed the parcel in
the cultivable agriculture category when land was awarded without specificity of use, because
most parcels awarded at the time of the Mahele were used for agricultural purposes and she had
already eliminated house lots, cemeteries, and churches, supra, FOF 638.
665. The 136.18 acres claimed by Nā Moku for Honopou, Palauhulu, Waiokamilo, and
Wailuanui Streams were comprised of the following areas:
a. Keanae (Palauhulu Stream): 27.195 acres;

b. Wailua : (Waiokamilo and 27.73 acres
Wailuanui Streams) 33.035 acres
24.227 acres
c. Honopou: (Honopou Stream) 23.99 acres
Total: 136.18 acres
(Teri Gomes, WDT, pp. 3-36, 38-39.)
666. Nā Moku had claimed that 60.767 acres, 44.474 acres in taro and 16.293
cultivable acres, are fed by Waiokamilo and Kualani Streams, 22.448 cultivable taro acres are
fed by Wailuanui and Kualani Streams, and 5 acres in Waianu Valley, between Wailuanui and
Keanae, are fed by Waiokamilo Stream. supra, FOF 601. Because what was thought was Kualani
Stream is actually the east branch of Waiokamilo Stream, Nā Moku’s revised claim is that
65.767 acres are fed by Waiokamilo Stream, and 22.448 acres are fed by Wailuanui and
Waiokamilo Streams, supra, FOF 602. The total of 88.22 acres (65.767 plus 22.448 acres) is
174
slightly larger than the total of the three Wailua areas of 84.99 acres (27.73 + 33.035 + 24.227),
supra, FOF 665, which is likely due to some overlap of acres ascribed to both Wailuanui and
Waiokamilo Streams.
667. The breakdown of each of the four groups in FOF 665, supra, is:
Keanae: 22 taro lots: 13.475 acres (0.07 to 2.2717 acres in size)

4 agriculture lots 7.00 acres
5 ili (land area) 5.49 acres
1 conservation 0.18 acres
1 wetland 1.05 acres
Total 33 parcels 27.195 acres
Wailua: 10 taro lots: 8.02 acres (0.125 to 2.7518 acres in size)

4 mo‘o (narrow strip of land) 7.43 acres
Total 22 parcels 27.73 acres
Wailua: 10 taro lots 9.22 acres (0.162 to 2.6719 acres)

1 kula (plain) and home lot 0.216 acres
1 pond 0.338 acres
Total: 26 parcels 33.035 acres
Wailua: 24 taro lots 12.92 acres (0.08 to 0.8320 acres in size)

17
described as a poalima, or chief's terraced plantation, with 6 lo‘i.
18
described as containing 26 lo‘i.
19
described as containing 10 lo‘i.
20
described as a taro lot.
175
Honopou: 1 lot, consisting of 22.81 acres that included:

taro lot 3.32 acres
unspecified 8 acres
poalima (chief’s terraced plantation) 1.67 acres21
land along three streams 9.82 acres
poalima (chief’s terraced plantation) 0.08 acres
taro lot and kula 1.10 acres
(Teri Gomes, WDT, pp. 3-36, 38-39.)
668. The lots, whether for taro, agriculture, ili, or mo‘o, are relatively small. The
largest of the taro lots was 3.32 acres, and the great majority of the taro lots were less than one
acre in size.
669. Counting only the taro lots and the poalima:
Keanae: 13.475 out of 27.195 acres less 10%: 12.13 acres

Wailua: 8.02 out of 27.73 acres less 10%: 7.22 acres
Honopou: 6.17 out of 23.99 acres less 10%: 5.55 acres
670. However, all except one of these 69 parcels were identified as only taro lots, with
the exception being 1.10 acres in Honopou, described as a taro lot and kula, supra, FOF 667.
awarded without specificity of use, because most parcels awarded at the time of the Mahele were
used for agricultural purposes and she had already eliminated house lots, cemeteries, and
churches, supra, FOF 638, 664.
21
The quantity arrived at was the remainder, because lot sizes were identified for only 3 of the
4 lots in the grant.
176
672. However, cultivable agriculture is not equivalent to wetland taro: 1) taro lots were
specified as so; and 2) there were other types of agriculture at the time of the Mahele, which used
much less water for growing crops. Therefore, while the cultivable agriculture category was
entitled to water from the time of the Mahele, that amount would be much less than for taro.
673. Counting the agricultural lots:
Keanae: 7.00 acres

Wailua: 11.86 acres
Wailua: 11.23 acres
Wailua: 5.00 acres
674. The Honopou acreage of 23.99 acres also included 9.82 acres along three streams,
supra, FOF 667, which were probably agricultural, as it ran along streams (See, infra, FOF 675).
675. Nā Moku also submitted other exhibits for:
Keanae, consisting of 397.41 acres:

Taro and house lot along Hamau (Kualani) Stream: 9.20 acres
Agricultural lot running along Palauhulu Stream: 13.70 acres
Agricultural lot running along Wailua(nui) Stream: 103.82 acres
Agricultural lot running along the Ditch of Wailua: 151.65 acres
Waianu, consisting of 160.50 acres:

Agricultural lot running from the mountain to the sea: 107 acres
Agricultural lot running from the government road to the sea: 53.50 acres
Honopou, consisting of 2.07 acres, although the total of the parcels is 0.624 acres:
Taro and pasture: 0.154 acres
Taro and pasture: 0.47 acres
Makapipi, consisting of 4.17 acres:

Agricultural lot running along Haiha Stream: 4.17 acres
(Teri Gomes, WDT, pp. 36-40.)
676. For Keanae, HC&S contends that there are only 10.53 acres, supra, FOF 594,
referring to the USGS study, supra, FOF 621, compared to the 13.475 acres as estimated in FOF
669, supra.
177
677. For Wailua, HC&S contends that it no longer diverts Waiokamilo Stream, supra,
FOF 603, that Wailuanui Stream is the sole water source for only 2.80 acres, supra, FOF 606,
but does not address the acreage that is watered by both streams.
678. For Honopou, HC&S contends that there are only 2 acres in taro, supra, FOF 589,
compared to 6.17 acres as estimated in FOF 669, supra.
679. Nā Moku had identified no acreage for Hanehoi and Puolua Streams, but
contended that insufficient water and lands that have either appurtenant or riparian rights require
that both Hanehoi and Puolua Streams be returned to their natural base flows (BFQ50), supra,
FOF 236. HC&S noted that CWRM identified an estimated cultivable area of 2.3 acres and
identified two parties who are or who would like to cultivate taro on four acres, as well as one
person who has a parcel adjacent to Hanehoi Stream and would like to exercise her riparian
rights, supra, FOF 591.
680. Nā Moku submitted one exhibit for Makapipi Stream on a 4.17-acre lot for
agricultural purposes running along Haiha Stream, supra, FOF 675. HC&S noted that CWRM
had records for two diversions for taro cultivation, and that Jeffrey Paisner owns property that
abuts Makapipi Stream but has no firsthand knowledge that taro was cultivated on his property.
(Makapipi IFSAR § 12.0, p. 84; Jeffrey Paisner, WDT, §§ 5-6.) [HC&S FOF 584-586.]
I. Noninstream Uses
1. HC&S
a. Agriculture Requirements
681. HC&S has approximately 30,000 acres of agricultural land in central Maui that
have historically depended on surface water from the EMI Ditch system. (Volner WDT
10/17/16, ¶ 10.)
178
682. Of the 30,000 acres, approximately 22,254 acres of land irrigated with water from
the EMI Ditch have been designated as Important Agricultural Lands (“IAL”) pursuant to HRS
chapter 205, Part III. The IAL designation “is a commitment to keep these lands in productive
agriculture over the long term.” (Volner WDT 10/17/16, ¶ 12.)
683. Consistent with the IAL designation, HC&S is engaged in furthering a plan to
transition the former sugarcane lands to the cultivation of diversified agriculture by A&B and
other that would be sustainable and economically viable and consistent with the IAL designation
(the “Diversified Agricultural Plan”). (Volner WDT 10/17/16, ¶ 13.)
684. Approximately 30,000 acres (the “East Maui Fields”) of HC&S’s 35,000-acre
sugarcane plantation can be serviced by surface water from EMI or brackish groundwater
pumped from within the boundaries of the plantation, but not water from the West Maui ditch
system. From 2008-2013, HC&S actively cultivated sugarcane on an average of 28,941 acres of
its East Maui Fields. (Volner, WDT, ¶ 2; Garret Hew, WDT, 12/30/14, ¶ 25; Volner, Tr., March
23, 2015, p. 27; Exhs. C-35 and C-137.) [HC&S FOF 590-592.]
685. From 2008 to 2013, HC&S received 113.71mgd22 from surface water deliveries
and 69.90 mgd in pumped groundwater for a combined total of 183.61 mgd (62 percent from
surface water and 38 percent from groundwater). (Exh. C-137, columns B and C.) [HC&S FOF
629.A.]
686. The use of those waters as reported by HC&S was as follows:
a. Sugarcane irrigation: 132.45 mgd

b. MDWS: 2.83 mgd
22
HC&S reports its water deliveries and usage in millions of gallons per year, and those
numbers have been divided by 365 to arrive at daily totals. For example, the 113.71 mgd in
surface water deliveries was reported as 41,505 million gallons per year.
179
c. HC&S Industrial: 6.25 mgd
d. Other: 0.41 mgd
Total: 141.94 mgd
Remainder: 41.67 mgd (183.61 - 141.94 mgd)
(Exh. C-137; Volner, Tr., March 23, 2015, pp. 23-30.)
687. MDWS’ usage is at the Kamole Weir and Kula Agricultural Park. Industrial usage
at HC&S was used in the factory, power plant, mixing fertilizer solutions, and anything else to
support the farming and factory operations, one of the largest uses being cane cleaning. “Other”
was water for tenants that were on the HC&S property, such as Ameron and for a period of time,
Monsanto. (Volner, Tr., March 23, 2015, pp. 23-26.))
688. After these three user categories, all of the remaining water was used for
sugarcane irrigation. The unaccounted for remainder was ascribed to system losses, consisting of
seepage, evaporation, and miscellaneous losses, such as back-flushing of filters, drip tube
ruptures or breaks, animal damage, pipeline breaks, misreported irrigation (if they are not
applying the correct hours to the amount that they ran), testing of systems prior to planting, or
where water is taken out of the system but not accounted for in daily irrigation. (Volner, Tr.,
March 23, 2015, pp. 26, 30-31, 140.) [HC&S FOF 637.]
689. The 132.45 mgd for sugarcane irrigation, divided by the 28,941 irrigated acres,
supra, FOF 684, was the gallons per acre per day, or 4,577 gad. (Exh. C-137.)
690. Compared to the actual irrigation of 4,577 gad that HC&S was able to deliver to
its fields, it had contended that irrigation requirements were 5,l46 gpad, resulting in 89 percent of
irrigation requirements being met from 2008 to 2013. (Exh. C-137.)
180
691. The 1/15/16 Proposed Decision had concluded that 4,844 gad was a reasonable
estimate of irrigation requirements for HC&S’s East Maui fields. (1/15/16, Proposed Decision,
FOF 337, 346.)
692. On January 6, 2016, A&B announced its decision to cease sugarcane cultivation
upon completion of the 2016 harvest and that it was transitioning HC&S to a diversified farm
model, the goal of which is to retain as much of the plantation in agricultural use as possible with
a mix of crops and agricultural activities that will be economically viable. The sugar plantation
ceased operations as of December 30, 2016. (Exh. C-153; Volner, Tr., 2/8/17, p. 245, ll. 6-9.)
[HC&S on reopening, FOF 337-339.]
693. Under its Diversified Agricultural Plan, HC&S is seeking large-scale agricultural
uses as well as smaller agricultural uses and considering how the various uses impact one
another rather than putting relatively small amounts of acreage into use in an expedient, ad hoc
fashion. (Volner, Tr. 2/6/17, p. 210, ll. 14-18, p. 214, l. 15 to p. 215, l. 5.) [HC&S on reopening,
FOF 340.]
694. In siting the differing uses throughout the former sugar lands, HC&S considered,
among other things, varying soil types, rainfall, solar radiation, elevation, and the relative
tolerance of the different crops to irrigation with brackish water. Thus, in general, crops with a
lower tolerance for irrigation with brackish water are sited in the higher elevations which do not
have access to well water. On the other hand, grasses, bioenergy crops, and crops raised for
animal feed, which have a suspected relatively higher tolerance for irrigation that is
supplemented with brackish water, are sited in the lower elevations where HC&S has historically
used its brackish water wells to supplement surface water imported from EMI, in the east, and
the Nā Wai ʻEhā streams, in the west, to meet the irrigation needs of approximately 35,000 acres
181
of sugar cultivation. (Volner, WDT, 10/17/16, ¶ 16; Volner, Tr., 2/6/17, p. 181, ll. 15-21.)
[HC&S on reopening, FOF 343.]
695. The Diversified Agricultural Plan envisions irrigating 26,996 acres (28,941 acres
had been previously irrigated in sugar cane, supra, FOF 684) of former sugar fields that were
previously irrigated with a combination of surface water delivered by EMI and brackish water
pumped from HC&S’s brackish water wells. An additional 3,954 acres are planned for
unirrigated livestock pastures on the eastern edge of the plantation where there is expected to be
sufficient rainfall to support this use, plus 227 acres of unirrigated forestry, for a total of 31, l77
acres. (Exh. C-156-A; Volner, WDT, 10/17/16, ¶ 17.) [HC&S on reopening, FOF 344.23]
696. The irrigation requirement for each crop is determined by applying the
appropriate crop co-efficient to the average daily evapotranspiration rates for the fields in
question, crediting average rainfall, and expressing the remaining requirement in gallons per acre
per day (“gpad”). The data used to calculate the water requirements for the crops is drawn from
14 weather stations strategically located throughout the plantation by representative region that
have been consistently operated for many years. (Exhs. C-156-A at 1, C-157-A; Volner, WDT,
10/17/16, ¶ 18; Volner, WRT, 1/20/17, ¶ 8.) [HC&S on reopening, FOF 345.]
23
As explained below, HC&S’s proposed FOF are in error on a number of mathematical
calculations. For example, the 3,954 acres planned for unirrigated livestock pasture and 227
acres of unirrigated forestry are in addition to—not subtracted from—the 26,996 acres. See,
infra, FOF 697.
182
697. HC&S’s forecast of the irrigation requirements for 26,996 acres of its East Maui
fields is as follows:24
use acres gpad mgd % total water

pasture, unirrigated 3,954 --- 0.0
pasture, irrigated 3,037 1,704 5.18 5.8
dairy, irrigated (surface only) 2,483 1,384 3.44 3.9
dairy, irrigated 1,972 2,297 4.53 5.1
forestry, unirrigated 227 --- 0.0
agricultural park (surface only) 717 2,448 1.76 2.0
diversified agriculture (surface only) 2,830 2,510 7.10 8.0
diversified agriculture 2,000 2,753 5.51 6.2
orchard crops (surface only) 2,212 5, l54 11.40 12.8
orchard crops 1,554 5,765 8.96 10.0
beverage crops (surface only) 901 5,096 4.59 5.1
pongamia 2,113 4,478 9.46 10.6
biogas feedstock area 820 3,565 2.92 3.3
mechanically harvested row crops 6,357 3,835 24.38 27.3
Total acres: 31, l77
Irrigated acres: 26,996 3,305 89.23 100%
(Exhs. C-156-A at 1, C-157-A; Volner, WDT, 10/17/16, ¶ 18; Volner, WRT, 1/20/17, ¶ 8.)
[HC&S on reopening, FOF 345.25]
698. The forecasted water requirements continue to evolve and will not become final
“until every acre has been planted back in another agricultural use.” Diversified agricultural uses
will also be subject to change, because some of HC&S’s potential partners and lessees are
expected to rotate multiple crops that could potentially have different crop coefficients. And it is
unknown whether every single one of these diversified agricultural uses will come to fruition
24
HC&S does not explain the higher requirements for trees, ranging from 4,478 gad for
pongamia to 5,765 gad for orchard crops, compared to diversified agriculture, ranging from
2,448 gad for the agricultural park to 3,835 gad for row crops.
25
Table in FOF 699 has been corrected for mathematical errors: 1) total acreage is 31, l77, not
26,996; 2) irrigated acres is 26,996, not 23,042 as stated in HC&S on reopening, FOF 344;
and 3) mgd is 89.23, not 32.587.
183
because so many basic questions about the company’s potential agricultural operations remain
unanswered. (Volner, Tr., 2/6/17, p, 160, l. 21 to p. 161, l. 2, p. 175, ll. 2-4.) [Nā Moku on
reopening, FOF 63, 65-66.]
699. MTF’s report, “Mālama ‘Āina: A Conversation About Maui’s Farming Future,”
claims that water use can be reduced by 10 to 50 percent through the use of regenerative
agricultural methods, including: a) rebuilding the soil to increase its water holding capacity; b)
reducing water use by selection of crops that are adapted to the local climate; c) reducing
evapotranspiration and harvesting atmospheric moisture by planting multi-function windbreaks;
d) adjusting the shape and orientation of fields and grading the site to maximize rainwater
harvesting, promote soil infiltration, increase groundwater recharge, and allow storage of storm-
water runoff. (Exh. E-160.) [Nā Moku on reopening, FOF 83-84.]
700. The Diversified Agricultural Plan is broken down loosely into uses that A&B
plans to self-perform and uses that A&B is hoping to partner with others. (Schreck, Tr., 2/8/17,
p. 289, ll. 5-9.) [HC&S on reopening, FOF 349.]
701. Of the 26,996 acres, they are willing to look at a number of different
arrangements from leases all the way to being completely vertically integrated in whatever crop
or production they decide to pursue. At this time, in addition to the 3,954 acres in livestock
unirrigated, HC&S intends to retain for itself: a) the 3,037 acres in livestock irrigated, b) the
6,357 acres in mechanically harvested row crops, c) the 2,113 acres of pongamia orchards, and
d) the 820 acres of biogas feedstock crops. (Volner, Tr., 2/6/17, p. 192, l. 22 to p. 193, l. 17.) (Nā
Moku on reopening, FOF 72.]
702. The aggregate irrigation requirement for the 26,996 acres is 3,305 gpad, or an
average daily requirement of 89.23 mgd, supra, FOF 697. Accounting for estimated losses of
184
22.7% due to seepage, evaporation, and other system losses, the gross amount of water to yield
the net irrigation requirement of 89.23 mgd is 115.46 mgd (1.29426 x 89.23). (Exhs. C-137, C-
156-A; Volner, WDT, 10/17/16, ¶ 19.) [HC&S on reopening, FOF 346.]
703. The gross irrigation requirement for acreage that is 100 percent dependent on
surface water breaks down as follows:
Agricultural Park 717 acres @ 2,448 gpad 1.75 mgd

Dairy 2,483 acres @ 1,384 gpad 3.44 mgd
Diversified Ag. 2,830 acres @ 2,510 gpad 7.10 mgd
Orchard Crops 2,212 acres @ 5, l54 gpad 11.40 mgd
Beverage Crops 901 acres @ 5,096 gpad 4.59 mgd
Total acres: 9, l43 acres
Total Irrigation Requirement 28.28 mgd
Gross Irrigation Requirement 36.59 mgd (1.294 x 28.28 mgd)27
(Exhs. C-156-A, C-157-A.) [HC&S on reopening, FOF 347.]
704. The gross irrigation requirement for acreage with access to well water breaks
down as follows:
Irrigated Pasture 3,037 acres @ 1,704 gpad 5.17 mgd

Irrigated Dairy 1,972 acres @ 2,297 gpad 4.53 mgd
Diversified Agriculture 2,000 acres @ 2,753 gpad 5.51 mgd
Orchard Crops 1,554 acres @ 5,765 gpad 8.96 mgd
Pongamia 2,113 acres @ 4,478 gpad 9.46 mgd
Biogas Feedstock 820 acres @ 3,565 gpad 2.92 mgd
Row Crops 6,357 acres @ 3,835 gpad 24.38 mgd
Total acres: 17,853 acres
Total Irrigation Requirement 60.93 mgd
Gross Irrigation Requirement 78.84 mgd (1.294 x 60.93
mgd)
26
The system loss is 22.7%, meaning that the efficiency - the part that makes it through - is
77.3%, or 0.773. To figure out how much water you need to send, you need to multiply by
the reciprocal of the efficiency, or 1/0.773 which works out to roughly 1.294.
27
36.59 mgd includes 22.7% in losses, or 8.31 mgd. Therefore, 36.59 mgd (28.28 + 8.31) is the
gross irrigation amount.
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(Exhs. C-156-A, C-157-A.) [HC&S on reopening, FOF 348.]
705. A&B has performed a high-level analysis of potential markets available for
Hawai‘i farmers and focused on markets for Hawaiʻi-produced products that are imported
widely, including, for example, beef and energy, which is why it has focused so far on the
pasturing project and the renewable energy bioenergy projects. It has also looked at the general
farming community in Hawai‘i and production markets and tried to assess what may be viable as
future lessees take these lands into diversified agriculture production. (Schreck, Tr. 2/8/17, p.
289, l. 12 to p. 290, l. 4.) [HC&S on reopening, FOF 350.]
706. HC&S has received approximately 250 inquiries about leasing former sugar lands
for agricultural activities since the cessation of sugar cultivation. Of these 250 inquiries, HC&S
is investigating over 60 that it has determined to be possible prospects meriting further review. If
all of the possible lease projects were successfully sited on former sugar lands and mutual
agreements were reached on lease terms, the aggregate acreage required would roughly total
19,500 acres. (Schreck, WRT, 1/20/17, ¶ 8.) [HC&S on reopening, FOF 351.]
707. HC&S states that virtually every prospective lessee has raised the topic of water
for irrigation, and A&B’s current inability to provide assurances regarding whether and how
much irrigation water can be made available to lessees from the EMI ditch system is a major
obstacle to procuring commitments from prospective lessees who need some assurance in order
to justify committing the necessary capital to develop a new agricultural operation. HC&S states
that no farmers have been willing to commit to cultivation absent some assurance as to the
quantity and quality of water and cost. (Schreck, WRT, 1/20/17, ¶ 9; Voner, Tr., 2/8/17, p. 268, l.
25 to p. 269, l. 20; Schreck, Tr., 2/8/17, p. 295, l. 20 to p. 296, l. 5.) [HC&S on reopening, FOF
352.]
186
708. At this time, HC&S’s water use is limited to irrigation of diversified agricultural
test crops, irrigation of cover crops to minimize soil erosion, and miscellaneous uses such as
industrial wash water, firefighting, and dust control. (Volner, WDT, 10/17/16, ¶¶ 3, 11; Volner,
Tr., 2/6/17, p. 182, l. 21 to p. 183, l. 1.) [HC&S on reopening, FOF 353.] [HC&S on reopening,
FOF 89.]
709. EMI is currently diverting approximately 20 mgd: approximately 6-8 mgd is used
by the County of Maui for its Kula Agricultural Park and Kamole Treatment Plant; 1 mgd is used
for HC&S’s cattle operation; 2 mgd is used for HC&S’s bioenergy crops; and 6 mgd is used for
maintenance of HC&S’s reservoirs for fire protection. Seepage loss accounts for the balance of
approximately 4 mgd (Hew, Tr., 2/6/17, p. 107, ll. 11-20.)
710. HC&S is currently cultivating test crops, has completed harvesting of over 180
acres of bioenergy crops, and is preparing for the cultivation of approximately 500 acres for
large-scale row testing. (Volner, Tr., 2/6/17, p. 168, ll. 8-23.) [HC&S on reopening, FOF 354.]
711. HC&S is also moving the cultivation of bioenergy crops into the
commercialization phase. For example, it has entered into a commercial feedstock agreement to
provide biogas feedstock to a company under contract with the County to provide power for the
Kahului Wastewater Treatment Facility. The expansion to 500 acres of row-crop testing supports
this initiative. (Volner, Tr., 2/6/17, p. 179, l. 25 to p. 180, l. 6; Volner, Tr., 2/8/17, p. 265, l. 14 to
p. 267, l. 11.) [HC&S on reopening, FOF 355.]
712. The projects currently planned for 2017 at the time of the reopened hearing
include:
a. A pasturing agreement with Maui Cattle Co. to populate the 4,000 acres
being converted to grazing pasture by fencing, seeding with signal grass,
and—in certain areas—installing supplemental irrigation;
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b. responding to a utility-issued RFI designating lands that are suitable for
renewable energy development (solar, wind, bioenergy), and making
those lands available in any subsequent RFPs for the siting of renewable
generating assets on Maui;
c. the sale of approximately 850 acres of land to the County for an

agricultural park (originally estimated as 717 acres, supra, FOF 697);
d. the establishment of approximately 100 acres of oilseed orchards—the

first phase of a planned 250 acres (out of a total 2,113 acres in the
Diversified Agricultural Plan, supra, FOF 697; and
e. the execution of a commercial feedstock agreement for anaerobic

digestion crop feedstocks and the associated use of innovative farming
techniques to expand HC&S’s bioenergy and grain crop rotation on up to
500 acres.
(Schreck, WRT, 1/20/17, ¶ 6.) [HC&S on reopening, FOF 342.]
713. Albert Perez, Executive Director of MTF and recognized during the hearing as an
expert in planning, was of the opinion that “at a minimum, a plan consists of steps that you are
going to take in the future, you have to declare what your goal is and have some steps that you’re
going to take, identify the resources with which you’re going to take those steps...(W)hen you’re
talking about a business plan, you have to do market analysis, you have to figure out what the
landed cost of the product is going to be when you produce that.” (Perez, Tr., 2/8/17, p. 423, l. 20
to p. 427, l. 2.) [Nā Moku on reopening, FOF 59.]
714. Volner of HC&S stated that they do not have any formal steps to implement the
plan, have various timelines associated with projects they are currently working on, and that it is
very difficult to put timelines on potentially leasing property to other diversified agriculture
farmers and getting people on the property without some certainty regarding water. They have no
timelines other than on the ones they are actively managing, and the potential tenants would be
the ones who would set timelines for their projects. They have internal financing models on how
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they will executive their own plans, but other operators and tenants are best suited to execute the
other portions of the plan. (Volner, Tr., 2/8/17, p. 255, l. 14 to p. 258, l. 2.)
b. Losses
i. EMI
715. From March to October 2011, USGS conducted a field study of the EMI ditch
system to document the location of tunnels and open-ditch sections and to determine seepage
losses and gains along selected reaches. (Cheng, C.L., 2012, “Measurements of Seepage Losses
and Gains, East Maui Irrigation Diversion System, Maui, Hawaii,” US Geological Survey Open-
File Report 2012-1115, 23 p. (“USGS 2012 Seepage Report”), presented at the CWRM meeting
of January 23, 2013. (“USGS 2013 Presentation”) [Nā Moku/MTF FOF 1064.]
716. The EMI diversion system begins at Makapipi Stream in the east and ends at
Maliko Gulch in the west. It consists of four primary ditches known as the Wailoa, New
Hamakua, Lowrie, and Haiku ditches. Additional ditches that connect to the four primary ditches
include the Koolau, Spreckels, Kauhikoa, Spreckels at Papaaea, Manuel Luis, and Center
ditches. (USGS 2012 Seepage Report, p. 1.)
717. Ditch characteristics for about 63 miles of the EMI system, excluding abandoned
ditches and stream conveyances, were characterized. About 46 miles (73%) of the surveyed
diversion system are tunnels, and 17 miles (27%) are open ditches, of which 3.5 miles (6%) are
lined, 2.5 miles (4%) are partially lined, and 11 miles (17%) are unlined. (Id.)
718. Tunnels, covered and/or underground, include culverts, siphons and pipes. Lined
ditches have concrete ditch bottom and walls, steel ditch bottoms and walls, or concrete ditch
bottoms and armored cut-stone walls. Partially lined ditches have earthen material on the ditch
bottom and one wall and lined on the other wall; earthen material on the ditch bottom and lined
189
on both walls; or a lined ditch bottom and earthen material on both walls. Unlined ditches have
earthen material on bottom and both walls. (USGS 2013 Presentation.)
719. The Wailoa, Kauhikoa, and Haiku ditches have greater than 96 percent of their
total length as tunnels, whereas more than half of the Lowrie ditch and Spreckels ditch at
Papaaea are open ditches. About 70 percent of the total length of lined open ditches in the EMI
diversion system is located along the Koolau ditch, whereas about 67 percent of the total length
of unlined open ditches is located along the Lowrie ditch. Less than 4 percent is partially lined
open ditches, of which about half is in the Spreckels ditch. (USGS 2012 Seepage Report, p. 1.)
720. Discharge measurements were made along 26 seepage-run measurement reaches
that are about a total of 15 miles in length. The seepage run measurement reaches represent 23
percent of the total length of ditches in the EMI system. (Id.)
721. The results were as follows:
Range of ditch flows (mgd) seepage losses and gains (mgd) seepage losses and gains, in
percentage of ditch flows
>19 -0.39 to 2 -1.6% to 4%

9.7 to 19 -0.26 to 1.4 -3.7% to 11%
1.3 to 5.2 -0.78 to 0.17 -20% to 8%
0 to 1.3 -0.13 to 0.21 -71% to 41%
Measurement reach lengths range from 0.15 to 2.23 miles. (USGS 2013 Presentation.)
722. Koolau and Spreckels ditches generally had seepage losses. Wailoa, Kauhikoa,
and New Hamakua ditches had seepage gains. The Manuel Luis, Center, Lowrie, and Haiku
ditches had variable seepage losses and gains. Open ditch measurement reaches generally had
seepage losses that ranged from 0.1 cfs (0.06 mgd) per mile at the Lowrie ditch to 3.0 cfs (1.94
mgd) per mile at the Koolau ditch. Tunnel measurement reaches generally had seepage gains that
190
ranged from 0.1 cfs (0.06 mgd) per mile at the Manuel Luis ditch to 5.2 cfs (3.36 mgd) per mile
at the Wailoa ditch. (USGS 2012 Seepage Report, p. 1.)
723. Thus, because both open ditches and tunnels in the EMI diversion system not only
incur seepage losses but also gains from groundwater, especially in the tunnels, it is not clear
whether net seepage losses even occur in the EMI diversion system. At low flows, the USGS
study results show that losses are greater than gains, but at higher flows, gains are greater than
losses, supra, FOF 721.
ii. HC&S
724. For 1986 to 2013, HC&S accounted for “system inefficiencies, installation, and
terrain inconsistencies” separately from “system losses due to seepage and evaporation of
transportation and storage system.” “System inefficiencies, etc.” assumed that “effective water
needed” was 80 percent of “gross water needed” and were incorporated into HC&S’s irrigation
requirements, which used an 80 percent efficiency factor in calculating its water requirements.
(Exh. C-74.) The 1/15/16 Proposed Decision had concluded that, for purposes of estimating
HC&S’s irrigation needs, an 85 percent efficiency factor should be used instead. (1/15/16
Proposed Decision, FOF 328-337.) “System losses, etc.” was estimated at 10 percent of the water
needed to irrigate 30,000 acres, but no analysis was provided for this estimate. (Exh. C-74.)
725. Based on this information, supra, FOF 724, system losses would be 10 percent of
the water required to irrigate 28,941 acres, or 4,844 gad x 28,941 acres x 0.1 = 14.02 mgd. (The
information provided by HC&S identified water requirements as 7,396 gad and acreage as
30,000, but reasonable water requirements had been found to be 4,844 gad, supra, FOF 691, and
irrigated acres—as opposed to the total East Maui fields of 30,000 acres—had been assumed to
be the 28,941 acres identified by HC&S in its 2008 to 2013 data.)

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726. For 1986 to 2009, all water needs were lumped together in a single number of
9,019 gad, not only including irrigation requirements but also system losses, irrigation
inefficiencies, and industry (factory) needs, so system losses cannot be estimated. (1/15/16
Proposed Decision, FOF 322.)
727. For 2008 to 2013, HC&S characterized all water that could not be accounted as
“seepage, evaporation and miscellaneous system losses.” Total surface and ground water
deliveries were 183.61 mgd and unaccounted water was 41.67 mgd, or 22.7 percent of surface
water delivered and ground water pumped. (1/15/16 Proposed Decision FOF 312-313, 315; Exh.
C-137.)
728. Estimating seepage and evaporation losses by way of direct measurement would
require closing sections of the ditches and reservoirs, allowing the water to remain in those
structures for a period of time, and taking before and after readings. This is impractical to do on a
large scale because it would have interrupted plantation operations. (Garret Hew, WDT, 2/10/15,
¶ 10; Garret Hew, Tr., March 17, 215, pp. 184, 186.) [HC&S FOF 636.]
729. As an alternative to direct measurement, HC&S calculated the amount of water
that cannot be accounted for, supra, FOF 727.
730. To obtain a benchmark against which the estimated 22.7 percent loss rate could be
compared, HC&S consulted the National Engineering Handbook published by the Soil
Conservation Service of the U.S. Department of Agriculture (“USDA”), which provides seepage
rate factors that can be applied to various sections of HC&S’s system. HC&S calculated the
average surface area under water for each type of material that holds or conveys the water (i.e.,
lined or unlined ditches or reservoirs). For each type of material, HC&S selected a relatively low
seepage factor along with a relatively high seepage factor from the USDA Handbook and applied
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each factor to the estimated surface area under water to calculate what would represent low
seepage loss and high seepage loss in the HC&S system per USDA’s standards. Based on the
foregoing calculations, a low seepage loss per day was estimated to be 30.75 mgd, or 16.76
percent of average daily water deliveries of surface and ground water of 183.61 mgd; a high
seepage loss per day was estimated to be 65.06 mgd, or 35.46 percent of average daily water
deliveries. (Garret Hew, WDT, 2/10/15, ¶¶ 11-12; Exh. C-138, Figure 2-50; Exh. C-139.)
[HC&S FOF 638.]
731. To account for loss due to evaporation, HC&S estimated the average daily
amount of evaporation from the surface of the water contained in the same ditches and reservoirs
as those considered in estimating the seepage losses. The average daily evaporation rate of 0.40
acre-inches was multiplied by the average daily surface area of the water in the system (243.48
acres), which yielded an average daily evaporation loss rate of 2.64 mgd. Added to the high and
low seepage calculations, an estimated range of losses from both seepage and evaporation was
33.40 mgd, or 18.20 percent of average daily water deliveries, to 67.70 percent, or 36.90 percent
of average daily water deliveries. (Garret Hew, WDT, 2/10/15, ¶ 13; Exh. C-139.) [HC&S FOF
639.]
732. The average of the high and low estimated losses from seepage and evaporation is
27.55 percent, and HC&S’s losses of 22.7 percent fell below this average. (Exh. C-139.) [HC&S
FOF 640.]
733. HC&S’ losses of 22.7 percent included not only seepage and evaporation losses,
but also miscellaneous losses such as back-flushing of filters, drip tube ruptures or breaks,
animal damage, pipeline breaks, misreported irrigation (if they are not applying the correct hours
193
to the amount that they ran), testing of systems prior to planting, or where water is taken out of
the system but not accounted for in daily irrigation. (1/15/16 Proposed Decision, FOF 315.)
734. In the Nā Wai ʻEhā contested case hearing, the Commission identified a number
of other factors that could contribute to miscellaneous losses, describing such losses in HC&S’s
field operations as “plausible and reasonable factors that would significantly increase their actual
irrigation requirements” and ascribing such losses as the equivalent of 5 percent of irrigation
requirements. (Exh. C-120.)
735. Five percent of irrigation requirements would be 7.01 mgd (4,844 gad x 28,941
acres x 0.05 = 7.01) mgd, losses that are “plausible and reasonable.”
736. Of HC&S unaccounted water of 41.67 mgd, or 22.7 percent of surface water
delivered and ground water pumped, supra, FOF 727, 34.66 mgd (41.67 mgd minus 7.01 mgd),
or 18.9 percent, would be ascribed to seepage and evaporation losses. This percentage is nearly
equal to the low seepage rate of 18.20 percent as calculated under USDA’s standards, supra,
FOF 731.
737. Thus, HC&S’s system losses of 22.7 percent (41.67 mgd of 183.61 mgd of
surface water delivered and ground water pumped) were reasonable losses under sugarcane
cultivation. Because the same distribution system would be used for diversified agriculture, the
same rate of 22.7 percent losses should be applicable.
c. Alternate Sources
i. Ground Water
738. HC&S’s irrigation structure includes 15 brackish water wells and associated
pumps with a total pumping capacity of 228 mgd, which may be used to supplement surface
water to irrigate 17,200 acres of the approximately 30,000 acres serviced by waters from the
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EMI Ditch system. (Exh. C-33; Exh. C-35; Exh. E-76 at 3 (PDF); Garret Hew, WDT, 12/30/14, ¶
25-26.) [HC&S FOF 606; Nā Moku/MTF FOF 997.]
739. The remaining 12,800 acres cannot be serviced by pumped ground water on a
consistent basis. Ground water can be delivered to 7,000 acres via a shared pipeline that served
as a penstock line for a hydroelectric unit for the majority of the year. This pump system was
designed and built to be an emergency water source for high-elevation fields in the event of
extreme drought, rather than a primary source of water. The system consists of a booster pump
system that diverts primary ground water at the Lowrie Ditch level to a higher elevation.
(Volner, WDT, ¶ 19.) [HC&S FOF 645.]
740. The maximum instantaneous pumping capacity of wells that can service the East
Maui fields is 215 mgd. However, the true instantaneous pumping capacity of the wells—i.e., the
most HC&S can pump over 3 to 5 days—was 115 mgd to 120 mgd. Sump levels in the wells
start to drop when pumping reaches 115 mgd to 120 mgd, especially in the summer months
where there is little recharge. Further lowering of the sump levels could cause severe mechanical
damage to the pumps. (Volner, Tr., March 23, 2015, pp. 16-19.) [HC&S FOF 611.]
741. From 2008 to 2013, HC&S pumped an annual average of 25,512 million gallons,
or 69.90 mgd, for use on the East Maui fields, including mill use. (Exh. C-137, Column C.)
[HC&S FOF 619.]
742. From 1986 to 2013, HC&S pumped an average of 71 mgd. Compared to surface
water deliveries during these times, the amounts and percentage of totals were as follows:
Total Surface water/percent Ground water/percent

1986-2013: 224 mgd 153 mgd (68%) 71 mgd (32%)
1986-2009: 239 mgd 167 mgd (70%) 72 mgd (30%)
2008-2013: 184 mgd 114 mgd (62%) 70 mgd (38%)
195
(Exhs. C-74; C-103, pp. 14-15 and Ex. C, App. G; C-137.)
743. Under sugarcane cultivation, ground water contributions to total irrigation uses
had remained constant at or near 70 mgd. The percent of total water contributions from ground
water rose from 30 percent in 1986 to 2009 to 38 percent in 2008 to 2013, because surface water
contributions decreased from 167 mgd to 114 mgd, while ground water contributions remained
the samesupra, FOF 742.
744. While HC&S was engaged in sugarcane cultivation, by using about 70 mgd of a
ground-water usable capacity of 115 mgd to 120 mgd, HC&S had an additional ground water
source of up to 45 to 50 mgd for a period of 3-5 days before sump levels in the wells start to
drop, supra, FOF 740.
745. This potential capacity might have been less because a reduction in surface water
importation coupled with an increase in ground water pumping would have likely increased
aquifer salinity levels, especially in the summer months when pumping was highest. (Exh. C-71,
Appendix A, p. E-2 and E-3.) [HC&S FOF 646.]
746. It is unclear what the direct relationship is of recharge from surface water
importation to the underlying groundwater aquifer. HC&S historically supplemented surface
water with pumped groundwater on a seasonal basis, and on an aggregate basis, constituted
between 20 to 30 percent of total water use when HC&S was cultivating sugarcane. The amount
of groundwater historically used was far in excess of the published sustainable yields of the
underlying aquifers, which was made possible by the large volumes of surface water. (Volner,
WDT, 10/17/16, ¶ 23; Volner, Tr., 2/6/17, p. 161, ll. 9-21, p. 163, ll. 16-21.) [HC&S on
reopening, FOF 387, 394.]
196
747. Although the crops conceptually planned for the area that can access groundwater
are known to be tolerant to some levels of brackish water irrigation, the precise tolerance levels
and the impacts of prolonged uses of brackish water on these crops are presently unknown.
Sugarcane was by far the most tolerant crop to brackish water. When these fields were planted in
sugarcane, well water was being applied during dry periods to a crop with a twenty-four-month
crop cycle. The crops currently planned for those acres will generally have much shorter crop
cycles than sugarcane, so they will have less time to recover from sustained periods of reliance
upon brackish water during dry periods, and thus will generally be more vulnerable to the
negative impacts on crop growth associated with prolonged exposure to brackish water. As with
sugarcane cultivation, the prolonged or primary use of brackish water could have additional
negative impacts on soil health with the buildup of minerals and salts without adequate surface
water to flush these constituents. (Volner, WDT, 10/17/16, ¶ 24; Volner, Tr., 2/6/17, p. 162, ll. 8-
14.) [HC&S on reopening, FOF 389.]
748. The transition to diversified agriculture will bring several key changes that will
impact the utility and reliability of brackish groundwater resources in the future—reduced
recharge from lower levels of irrigation of the overlying lands, uncertain tolerance of diversified
agriculture crops to heavy reliance on brackish water, the higher costs associated with well water
versus surface water, and the higher economic hurdles related to higher costs of investment in
new agricultural ventures versus ongoing sugar operations where the major investments had
already been made. (Volner, WDT, 10/17/16, ¶ 22.) [HC&S on reopening, FOF 388.]
749. Given that the future crops will generally be less tolerant to brackish water than
sugarcane and that the amount of surface water imported from East Maui is expected to be
reduced to meet the amended IIFS, HC&S believes that it is not reasonable to assume that use of
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groundwater will be within the historical range of 20 to 30 percent of total water use and believes
that a sustainable level of groundwater use will more likely be within the range of 0 to 20 percent
of total water use. However, HC&S has not commissioned any expert to ascertain the brackish
water tolerance or the impact of prolonged use of brackish water for any of its proposed uses.
(Volner, Tr., 2/6/17, p. 163, l. 21 to p. 164, l. 1, p. 202, ll. 2-24, p. 221, l. 23 to p. 222, l. 7.)
[HC&S on reopening, FOF 395; Nā Moku on reopening, FOF 97-98, 103-105.]
750. Taking into consideration the factors identified in FOF 745-749, supra, an
analysis of what would be reasonable estimates of the groundwater alternative from HC&S’s
wells to EMI ditch surface water is provided in the section on “Economic Impacts,” infra, with
an estimate of 17.84 mgd or less of brackish well water, infra, FOF 795. This would comprise 20
percent of the estimated irrigation requirements of 89.21 mgd for the 26,996 acres of diversified
agriculture, supra, FOF 703-704.
ii Additional Reservoirs
751. Reservoirs would be most valuable as a water source in the summer months, when
it’s dry and HC&S’s daily irrigation needs would be at their maximum. (Volner, Tr., March 23,
2015, p. 33.)
752. Storing water in the existing reservoirs or lining them to reduce or eliminate
seepage would not provide large amounts of new water, because in the summer months the water
is not being put in the reservoirs, and if it is, it’s put in and taken out relatively quickly. (Volner,
Tr., March 23, 2015, p. 35.)
753. The 36 reservoirs located throughout the plantation range in size from 4 million
gallons to 80 million gallons, which are a total of 862 million gallons at full capacity, only a five-
to ten-day supply for the approximately 12,800 acres that are serviced by these reservoirs. The
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reservoirs are primarily holding ponds where water is collected and distributed for irrigation or
other uses on a daily basis. Only when ditch flows are high do they have the ability to store
additional water. (Exh. C-68, pp. 5-6.)
754. A reservoir would need to have an extremely large storage capacity to meet
demands for a prolonged period of time during the summer months when water would be the
most valuable. To be of most value, a large reservoir would need to be located at the highest
elevation at the head of the Wailoa Ditch, above Paia or Haliimaile, which supplies the greatest
amount of water to HC&S, so as to maximize the ability of the reservoir to supply water to
various parts of the plantation during dry periods. (Volner, Tr., March 23, 2015, pp. 32-33.)
[HC&S FOF 659.]
755. In the 1960s, HC&S internally considered building such a large reservoir, but
decided not to pursue it after a study indicated that a billion-gallon reservoir would provide only
a 10-day supply of water. HC&S’s daily water needs at that time were in the range of 200 mgd to
300 mgd, and even a billion-gallon reservoir would provide 200 mgd for only five days. (Garret
Hew, Tr., March 18, 2015, p. 236; Volner, Tr., March 23, 2015, P. 33.) [HC&S FOF 658.]
756. Assuming that there is a reduction of stream water and not a total cessation,
smaller deficits would mean that a billion-gallon reservoir could provide, for example, 40 mgd
for 25 days.
757. However, there are some complexities with how you would fill such a large
reservoir. Even if the Wailoa Ditch were flowing at capacity in the summertime, it would make
more sense to apply that water as quickly as possible to the fields to avoid having system losses
or to reduce system losses instead of trying to store it and meter it out. (Volner, Tr., March 23,
2105, pp. 34-35.)

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758. Ever since the Kaloko Dam incident on Kauai, all dam structures are highly
scrutinized by the state. Constructing a large dam today will require much more scrutiny, much
more oversight, than previously constructed reservoirs, and community opposition would also be
expected. Any dam that would be sited would be at the highest elevation possible, and that would
be above either Paia or Haliimaile. (Volner, Tr., March 23, 2015, p. 34.)
759. A billion-gallon reservoir is approximately 3,800 acre-feet. If the reservoir is 10
feet deep, it would occupy approximately 30 acres. It would be very difficult to site a reservoir
that large at the highest elevation on the plantation. (Garret Hew, Tr. March 18, 2015, p. 98;
Volner, Tr., March 23, 2015, p. 33.) [HC&S FOF 660.]
760. The cost of building a billion-gallon reservoir would depend on a number of
factors, including terrain, acquisition of land, and permitting. In 2009, HC&S estimated that
building a billion-gallon reservoir on Maui would cost well in excess of $150 million. (Exh. C-
68, p. 6.) [HC&S FOF 663.]
761. HC&S has not considered building a large number of small reservoirs at the top of
the plantation, because they wouldn’t have the benefit that a large reservoir at the highest
elevation, the most eastward end of the plantation, would have. This would be where the largest
supply comes in, the Wailoa ditch. (Volner, Tr., March 23, 2015, pp. 142-143.)
iii. Recycled Wastewater
762. The Kahului Wastewater Reclamation Facility (“Kahului WWRF”) currently
produces R-2 recycled water. (Exh. E-88, p. 2.)
763. While the Hawaii Department of Health has approved the use of R-2 water for
sugarcane irrigation, HC&S prefers R-1 water due to its user flexibility and concerns about
200
workers coming in direct contact with the recycled water. R-1 water is recycled water that is at
all times oxidized, filtered, and then exposed to a high level of disinfection. (Exh. E-88, pp. 2, 6.)
764. In 2010, the Maui County Council published the “Central Maui Recycled Water
Verification Study” (“Verification Study”) to analyze future alternatives for the transmission and
optimization of R-1 recycled water from Kahului WWRF in order to provide a source of
irrigation water for existing and planned future projects, and to provide alternatives to the use of
injection wells. (Exh. E-88, p. 2.)
765. Seed cane is the best use of recycled water because nitrogen present in recycled
water can reduce sugar yields in mature cane if recycled water is used at 100% concentration.
Blending recycled water with ditch water can reduce nitrogen levels, but there are constraints on
HC&S’ ability to blend recycled water using its distribution system. Some of the distribution
systems owned by HC&S are considered Hawaii State waterways, and the DOH does not permit
recycled water of any quality to enter state waterways. Thus, the use of recycled water by
HC&S is limited to areas where it has distribution systems that would be dedicated only to
recycled water. (Exh. E-88A, pp. 12-13.)
766. The most desirable location for HC&S to use recycled water would be in the
vicinity of Maui Lani towards Maalaea where seed cane is cultivated. (Exh. E-88A, p. 6.)
767. According to the Verification Study, the equipment that would be needed to be
installed to upgrade the Kahului WWRF to R-1 water capability includes a coagulation system, a
filtration system, a turbidity monitoring system, an automatic diversion system for use when R-1
turbidity systems are not met, and an ultra violet disinfection system. The estimated cost of the
upgrades is $4.97 million. (Exh. E-88A, p. 6.)
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768. The Verification Study analyzed three options for distribution of R-1 water after
the upgrade of the Kahului WWRF to R-1 water capability is complete:
• Option 1: Develop distribution system from Kahului WWRF to Maui Lani

where R-1 water could be used for landscape irrigation at commercial
properties in the Kaahumanu Avenue vicinity. The estimated cost of Option 1
is $24.02 million.
• Option 2: Develop distribution system from Kahului WWRF to Kanaha Beach

Park and Kahului Airport where R-1 water could be used for landscape
irrigation. The estimated cost of Option 2 is $3.97 million.
• Option 3: Develop distribution system from Kahului WWRF to HC&S where

R-1 water could be used for agricultural irrigation. This option could connect
to an existing non-potable water distribution system previously constructed
and utilized by Maui Land & Pineapple Company ("MLP") to deliver cannery
wastewater to HC&S where it was used for seed cane irrigation. The
Verification Study also analyzed an abbreviated version of Option 3 (Option
3A), which would create a dedicated system that would only serve HC&S by
constructing only enough R-1 pipe along Kaahumanu Avenue to reach the
existing MLP pipe lines. The estimated cost of Option 3 is $1.85 million, and
the estimated cost of Option 3A is $11.38 million.
(Exh. E-88A, p. 7-8, 10.) None of these options would entail distributing recycled wastewater for
use by HC&S on its East Maui Fields.
769. The Verification Study does not provide a timeline for when any of the three
options for developing a recycled water distribution system from the Kahului WWRF to the
Central Maui region would be completed, but because the upgrade of the Kahului WWRF to R-1
water capability is a prerequisite to developing any of the options, none of the options will be
completed, if at all, until sometime after 2020.
770. HC&S retained Austin Tsutsumi & Associates, Inc. (“ATA”) to address the
feasibility of utilizing treated effluent from the Kahului WWRF as an alternative source to Nā
Wai ʻEhā stream water in the Nā Wai ʻEhā IIFS contested case proceeding. Exhibit C-119 is a
copy of the resulting report dated January 22, 2014. The fields that could be served by such a
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project are on the western side of the plantation, i.e., on the opposite side of the HC&S plantation
from the HC&S infrastructure that distributes water received from EMI. (Volner, WDT 1/27/15,
¶ 2; Exh. C-119.)
771. According to the ATA Report, there is approximately 2.95 mgd of R-2 treated
effluent that could potentially be reliably made available to HC&S 365 days a year from the
WWRF upon a definitive agreement being reached between HC&S and the County of Maui and
the construction of improvements at an estimated capital cost of approximately $16.9 million
associated with making the water accessible to HC&S for its Nā Wai ʻEhā fields. Upon
completion of the improvements, projected to be sometime in 2020 at the earliest, there would
then be an additional annual operating and maintenance ("O&M") cost to HC&S of
approximately $ 521,000, which includes $161,512.50 in fees that the County of Maui would
charge for treated effluent at the rate of $ 0.15/1,000 gallons as stated in the County of Maui’s
letter to ATA dated January 15, 2014 (attached as Appendix A to the ATA Report). (Volner,
WDT 1/27/15, ¶ 3; Exh. C-119, p. 35.)
772. The ATA Report, like the Verification Study, was focused on the potential use of
reclaimed water on fields that are in relatively close proximity to the Kahului WWRF utilizing
existing pipelines formerly operated to transport cannery wastewater from the now closed Maui
Land & Pineapple Company, Inc. facility in Kahului. It would be much more difficult and costly
to design and construct a system to transport reclaimed water to irrigate the East Maui fields that
would be most impacted by reductions in EMI water since they are located much farther away
from the Kahului WWRF and at much higher elevations. (Volner, WDT 1/27/15, ¶ 4; Exh. C-
119.)
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773. Nā Moku/MTF proposed a number of FOF on the use of wastewater for
sugarcane irrigation, based on the December 20, 2010, Verification Study. (Nā Moku/MTF
Proposed FOF 973-985.)
774. Nā Moku/MTF contended that “(f)unds in the County budget have been set aside
for an R-1 upgrade and transmission lines at the Kahului plant. What remains to be decided is
where these lines would be placed.” (Nā Moku/MTF Proposed FOF 974.)
775. What is in the record is the response of Irene Bowie, Executive Director of MTF:
A. There has been ongoing conversation, and I’ve talked with staff in the
Department of Environmental Management about funding for that, and the
county has looked to put money into the budget. I believe in the 2015
budget there is money set aside.
And also Department of Transportation Airports Division was willing to

put money into a line that would go to the airport.
(Irene Bowie, Tr., March 23, 2015, p. 167.)
776. Irene Bowie, Executive Director of MTF, makes a number of statements that do
not distinguish the use of wastewater from the Kahului WWRF on HC&S’ West Maui versus
East Maui fields. (Infra, FOF 777-781.)
777. Nā Moku/MTF contends that “Option 2 on page 8 of the Central Maui Recycled
Water Verification Study proposes a distribution system from the Kahului WWRF to Kanaha
Beach Park and Kahului Airport that could be extended to HC&S fields north of the airport.”
(Exhs. E-88, E-88-A, E-126.) (Nā Moku/MTF FOF 975.)
778. However, Option 2 was for a distribution system to Kanaha Beach Park and
Kahului Airport only, and it was Irene Bowie that stated that it was MTF’s suggestion “that it
could conceivably go on out to fields in the north side of HC&S’s plantation.” (Irene Bowie, Tr.,
March 23, 2015, p. 166.)

204
779. The HC&S fields on the north side of HC&S’ plantation are irrigated by either
EMI ditch water or HC&S wells. (Exh. C-35.)
780. The other options identified by Irene Bowie pertain to HC&S’s West Maui fields:
1) a proposed pipeline along Kaahumanu Avenue to reach existing Maui Land and Pine
(“ML&P”) pipe lines that used to carry wastewater from its cannery operations to HC&S’s seed
cane fields; and 2) pumping R-1 water from the WWRF directly to HC&S’s reservoir, are all in
the West Maui fields. (Exh. C-120, p. 86, FOF 506; Exh. C-119, p. 36.)
781. In order to realize the use of WWRF R-1 water on HC&S’s East Maui fields on
the north side of HC&S’ plantation the following must be completed: 1) upgrade of the Kahului
WWRF to R-1 water capability, with an estimated cost in December 2010 of $4,965,000 (Exh.
E-88, p.6); 2) a pipeline to Kahului Airport, and 3) a dedicated HC&S pipeline from that point to
its East Maui fields adjacent to the airport.
782. The current dry weather capacity flow of the WWRF is 7.9 mgd for R-2 water.
The minimum average daily flow of effluent produced over the last 10 years was approximately
3.2 mgd during the months of August and September 2012. There is presently only 2.95 mgd to
4.2 mgd of R-2 available on a consistent basis. (Exh. C-119, p. 36; Exh. E-88, pp. 2, 6.)
iv. Maui Land and Pine
783. Nā Moku/MTF contends that Maui Land and Pine (MLP) relied on EMI for
irrigation water for 2,800 acres of its 6,000 acres, or approximately 4.5 mgd, and that 4.5 mg can
be deducted from any determination of actual need for HC&S because MLP has gone out of
business. (Exh. C-85, p. 32.) [Nā Moku/MTF FOF 1108-1113.]
784. However, MLP and HC&S had a transportation agreement, and not a water-use
agreement, for use of the EMI transmission system to transport water MLP pumped into the EMI
205
ditch at Nahiku for use on its pineapple fields. Furthermore, EMI/HC&S does not intend to use
water from the well in the future, because the pump is small, and the cost of electricity outweighs
the use of that water. (Exh. E-107; Garret Hew, Tr., March 18, 2015, pp. 165-166.) [Nā
Moku/MTF FOF 1109-1110, 113.]
d. Economic Impact
785. Under sugarcane cultivation, of the approximately 30,000 acres served by the
EMI Ditch system, approximately 12,800 acres were entirely dependent on surface water—
except for 7,000 acres that can be irrigated with brackish well water in the event of extreme
drought through a booster pump system—while the remaining approximately 17,200 acres could
also be served from brackish water wells, supra, FOF 738-739.
786. Under full buildout of the Diversified Agricultural Plan, approximately 9,143
acres will only have access to surface water, and 17,853 acres to both surface and brackish well
water, supra, FOF 703-704.
787. Under sugarcane cultivation, brackish well water had contributed about 70 mgd,
representing about 30 percent of total irrigation, from 1986 to 2009, rising to 38 percent of total
irrigation, from 2008 to 2013, because surface water contributions had decreased from 167 mgd
to 114 mgd during the same time periods, supra, FOF 742-743.
788. But the percent of brackish water on the approximately 17,200 acres of sugarcane
fields that had access to well water would have been much higher than 38 percent. Of the 132
206
mgd total irrigation water, supra, FOF 686, 44 percent28, or 58 mgd, would have been used on
the approximately 12,800 acres that had access only to surface water, leaving 74 mgd of surface
water to be used together with 70 mgd of brackish well water on the remaining 16, l41 acres.
Thus, although brackish well water comprised 38 percent of the total irrigation requirement,29 it
comprised 48 percent30 of the water applied on the acres which could use both surface and well
water.
789. The estimated requirements under full buildout of the Diversified Agricultural
Plan are 28.28 mgd for the 9,143 acres with access only to surface water, and 60.93 mgd for the
17,853 acres with access to both surface and well water, supra, FOF 703-704, for a total of 89.21
mgd.31
790. If we assume that the same historical use of 70 mgd of brackish well water is
used, that would require only 19.21 mgd of surface water, or 60.6 percent brackish well water
and 39.4 percent surface water, about double the percent of brackish well water used for
sugarcane cultivation, supra, FOF 787.
28
This percentage is based on the number of acres that had access only to surface water
(12,800) multiplied by the actual amount of irrigation delivered to HC&S fields (4,544 gad).
FOF 689, 690, and 738.
29
The amount of pumped brackish well water divided by the total irrigation requirement (70
mgd/132 mgd).
30
This percentage is determined by dividing the amount of pumped water (70 mgd) by the
amount of total available water (total = surface water (74 mgd) plus pumped water (70 mgd)
= 144 mgd).
31
The estimated gross irrigation requirement was 115.43 mgd, but that included system losses.
207
791. Moreover, only 19.21 mgd of surface water would be available for the 28.28 mgd
required on the 9,143 acres with access only to surface water, leaving none for the remaining
17,853 acres. As a result, a large percent of the 9,143 acres would not be irrigated, and while 70
mgd of brackish water would be available for the 60.93 mgd required for the 17,853 acres, 100
percent of irrigation requirements would come from brackish well water.
792. If the same proportion of brackish well water is used as was historically applied in
sugarcane cultivation, or 30-38 percent of the total estimated irrigation requirements of 89.21
mgd, at 30 percent brackish water, 26.76 mgd would be brackish water and 62.45 mgd would be
surface water. At 38 percent, brackish water would be 33.90 mgd and surface water would be
55.31 mgd. However, again, 28.28 mgd of the surface water would have to be applied to the
9,143 acres with access only to surface water. At 30 percent brackish water there would only be
34.17 mgd32 of surface water available for use together with 26.76 mgd of brackish water on the
remaining 17,853 acres. This would result in 44 percent brackish water being applied to the
17,853 acres with access to both surface and well water. At 38 percent brackish water, there
would be 27.03 mgd33 of surface water available for use together with 33.90 mgd of brackish
water, resulting in 61 percent brackish water being applied to the 17,853 acres with access to
both surface and well water.
793. Volner of HC&S was of the opinion that, given that the future crops will
generally be less tolerant to brackish water than sugarcane and that the amount of surface water
imported from East Maui is expected to be reduced to meet the amended IIFS, it is not
32
62.45 mgd (surface water) – 28.28 mgd (water for 9,143 acres) = 34.17 mgd
33
55.31 mgd (surface water) – 28.28 mgd (water for 9,143 acres) = 27.03 mgd
208
reasonable to assume that use of groundwater will be within the historical range of 20 to 30
percent of total water use and believes that a sustainable level of groundwater use will more
likely be within the range of 0 to 20 percent of total water use, supra, FOF 750.
794. At 20 percent of total water use, brackish water would comprise 17.84 mgd of the
total requirement of 89.21 mgd. 28.28 mgd of surface water would be used on the 9,143 acres
with access only to surface water, and 43.09 mgd34 would be left for the 17,853 acres with access
to both surface and well water. Thus, of the 60.93 mgd required for the 17,853 acres, 17.84 mgd,
or 29 percent, would be brackish water and 55.75 mgd, or 71 percent, would be surface water.
This is compared to 48 percent brackish water when sugarcane was being irrigated, supra, FOF
788.
795. To summarize:
a. Total sugarcane irrigation used 70 mgd of brackish water, which was 30
percent of total irrigation from 1986-2009, rising to 38 percent in 2008-2013. On those
fields with access to both surface and brackish water, the percent of brackish water was
48 percent from 2008-2013, supra, FOF 788.
b. For diversified agriculture:
i. If 70 mgd of brackish water is used, as was historically used for

sugarcane irrigation, of the 89.21 mgd water requirements for diversified
agriculture, the percent of brackish water for total requirements would be 78
percent, leaving only 19.21 mgd of surface water required for total water
requirements. All of that surface water would be used for the 28.28 mgd required
on the 9, l43 acres with access only to surface water, leaving no surface water for
the remaining 17,853 acres. As a result, a large percent of the 9, l43 acres would
not be irrigated, and while 70 mgd of brackish water would be available for the
34
89.21 mgd (total water) – 17.84 mgd (brackish water) – 28.28 mgd (water for 9,143 acres) =
43.09 mgd.
209
60.93 mgd required for the 17,853 acres, 100 percent of irrigation requirements
would come from brackish well water, supra, FOF 790-791.
ii. For fields with access to both surface and brackish water, the
amounts of brackish water that would represent lower percentages than the 33.90
mgd, which represents 38 percent of total water and 48 percent on fields with
access to surface and well water when sugarcane was being irrigated would be: 1)
26.76 mgd, which represents 30 percent of total water and 44 percent on fields
with access to both surface and well water; and 2) 17.84 mgd, which represents 20
percent of total water and 29 percent on fields with access to both surface and
well water, supra, FOF 792-794.35
2. MDWS
a. Uses
796. MDWS is the sole municipal water provider for the County of Maui. The MDWS
Upcountry Water System serves the communities of Kula, Haiku, Makawao, Pukalani,
Haliimaile, Waiakoa, Keokea, Waiohuli, Ulupalakua, Kanaio, Olinda, Omaopio, Kula Kai, and
Pulehu. (David Taylor, WDT, David Taylor, Tr., March 11, 2015, p. 41.) [MDWS FOF 13.]
797. The population served by the MDWS upcountry system is projected at 35,251
people and includes several businesses, churches, Kamehameha Schools, Hawaiian Homelands,
and government facilities. By 2030, the population is anticipated to grow by about 8,424 to a
total of 43,675. (Michele McLean, WDT, ¶5; Exh. B- David Taylor, WDT, ¶ 6; David Taylor,
Tr., March 11, 2015, p. 41; Michele McLean, Tr., March 12, 2015, pp. 120-127; Exhs. B-1, B-
18, B-58.) [MDWS FOF 15, 34.]
798. Approximately 60 percent of MDWS’s system is used domestically, and the
remaining 40 percent for agricultural purposes. (David Taylor, WDT, ¶ 17; Exh. B-2, pp. 1-2;
David Taylor, Tr., March 11, 2015, pp. 44-47.) [MDWS FOF 21.]
35
These estimates do not include system losses.
210
799. Approximately 80 to 90 percent of the water delivered within the upcountry
system comes from surface water sources, either directly or by way of various raw water storage
facilities. (David Taylor, WDT, ¶¶ 7-8, 18; Exh. B-2, Table 2; David Taylor, Tr., March 11,
2015, p. 44.) [MDWS FOF 20.]
800. MDWS relies on three surface water sources, one of which is delivered by EMI
through the Wailoa Ditch, and the other two through two MDWS higher-elevation aqueducts
maintained by EMI that transport water to Olinda and Kula, under a contractual agreement
originated under the 193 East Maui Water Agreement and subsequent agreements. (Exhs. B-5,
B-6, B-7, C-3.) [Nā Moku/MTF FOF 844.]
801. Water Treatment Conveyance Production Average
Plant (“WTP”) Elevation System Capacity Production
Olinda 4,200 feet Upper Kula 2.0 mgd 1.6 mgd

Flume
Piiholo 2,900 feet Lower Kula 5.0 mgd 2.5 mgd
Flume
Kamole-Weir 1, l20 feet Wailoa Ditch 6.0 mgd 3.6 mgd
(David Taylor, WDT, ¶ 9-11; David Taylor, Tr., March 11, 2015, p. 47; Exh. B-3, pp. 24-25;
Exh. B-16, pp. 6-7.) [MDWS FOF 23-25; Nā Moku/MTF FOF 844.]
802. The Olinda facility diverts water from the Waikamoi, Puohokamoa, and
Haʻipuaʻena streams. Water is stored in the 30-million gallon Waikamoi Reservoirs (two, at 15
million gallons each) and the 100-million gallon Kahakapao Reservoir. (David Taylor, WDT, ¶
11; Exh. B-3, p. 25; David Taylor, Tr., March 11, 2015, p. 47.) [MDWS FOF 25.]
803. The Piiholo facility diverts water from the Waikamoi, Puohokamoa, Haʻipuaʻena,
and Honomanū streams into the 50-million gallon Piiholo Reservoir. (David Taylor, WDT, ¶ 10;
David Taylor, Tr., March 11, 2015, p. 47; Exh. B-3, p. 25.) [MDWS FOF 24.]
211
804. The Kamole-Weir facility, which has no reservoir, relies on water from the
Wailoa Ditch, which diverts water from Honopou, Hanehoi, Puolua, Alo, Waikamoi,
Puohokamoa, Haʻipuaʻena, Kōlea, Punalau, Honomanū, Nuaʻailua, Piʻinaʻau, Paluhulu, East and
West Wailuanui, West Wailuaiki, East Wailuaiki, Kopiliula , Pua‘aka‘a, Waiohue, Paʻakea,
Waiaaka, Kapaula, Hanawī, and Makapipi streams. (David Taylor, WDT, ¶ 9; David Taylor, Tr.,
March 11, 205, p. 47; Exh. B-3, p. 24.) [MDWS FOF 23.]
805. Besides its customers on the Upcountry Water System, supra, FOF 796, MDWS
also provides non-potable water to the Kula Agricultural Park (“KAP”) through diversions from
the same streams which serve the Kamole-Weir WTP through the Wailoa Ditch. Water is stored
in two reservoirs with a total capacity of 5.4 million gallons. KAP consists of 31 farm lots
ranging in size from 7 to 29 acres, and which are owned by the County of Maui. The individual
lots are metered and billed by MDWS. (David Taylor, WDT, ¶ 13; Exh. B-4.) [MDWS FOF 27.]
806. MDWS receives its surface water under a series of contracts with EMI. The
original contract was entered into in 1961, and the “Master Water Agreement” was replaced by a
1973 “Memorandum of Understanding” as the primary contract, which had a term of 20 years.
Since its expiration, there have been a total of 8 extensions, and after the lapse of the most recent
extension, water has continued to be provided through a “Memorandum of Understanding
Concerning Settlement of Water and Related Issues” dated April 13, 2000 (“MOU”). (David
Taylor, WDT, ¶15; Exhs. B-5 to B-15.) [MDWS FOF 29.]
807. The MOU provides that MDWS will receive 12 mgd with an option for an
additional 4 mgd, for a total of 16 mgd. During low-flow periods, the County and HC&S will
both receive a minimum allotment of 8.2 mgd. If these minimum amounts cannot be delivered,
212
MDWS and HC&S will receive prorated shares of the water that is available. (David Taylor,
WDT, ¶ 15; David Taylor, Tr., March 11, 2015, pp. 53-54; Exh. B-15.) [MDWS FOF 30.]
808. Approximately 80 to 90 percent of the water delivered within the upcountry
system comes from surface water sources, supra, FOF 799, with the remaining 10 to 20 percent
coming from a series of basal aquifer wells. The Haiku Well can produce 0.5 mgd, the Pookela
Well, 1.3 mgd, and the two Kaupakalua wells, 1.6 mgd, for a total of 3.4 mgd. (Exh. B-16, p. 8.)
[Nā Moku/MTF FOF 850.]
809. In times of emergency, MDWS may also draw 1.5 mgd from the Hamakuapoko
Wells. This water, however, is only available during times of emergency due to concerns over
pesticides from former pineapple production. (David Taylor, Tr., March 11, 2015, pp. 61-62.)
810. The combined surface and ground water sources have a production capacity of
17.9 mgd: 13.0 mgd from surface water, supra, FOF 801, and 4.9 mgd from ground water
(including 1.5 mgd in emergencies from the Hamakuapoko wells), supra, FOF 808-809.
811. However, due to occasional maintenance requirements and limitations on the use
of the Hamakuapoko Wells, reliable capacity stands at 9.1 mgd. This is premised on the
following sources not being available: 1) the largest surface-water facility, the Kamole-Weir at
6.0 mgd production capacity; 2) the Pookela Well at 1.3 mgd production capacity; and 3)
Hamakuapoko Wells at 1.5 mgd, which is only available at times of emergency. These three
sources total 8.8 mgd, potentially reducing total production capacity of 17.9 mgd to 9.1 mgd.
(David Taylor, Tr., March 12, 2015, pp. 68-69.)
812. Customer usage based on meter readings between 2004 and 2013 average 7.9
mgd, varying between 6 mgd and 10 mgd. (Exhs. B-2; B-16, p. 3, table 3; B-21, p. 14, figure 1.)
[MDWS FOF 33.]

213
813. There are currently 9,865 water connections to the Upcountry System. As of June
30, 2014, there were 1,852 applicants on the County’s waiting list for new water connections.
MDWS contends that if all were connected to the Upcountry System, water demand would
increase by approximately 7.5 mgd, or 95 percent of current usage of 7.9 mgd, supra, FOF 812.
However, because of the high cost of these connections, approximately half of the applicants
who have been offered new meters have declined, and MDWS anticipates that this trend will
continue, leaving demand at about 3.75 mgd. For the purposes of planning for the development
of infrastructure, however, MDWS relies upon the full amount of this projected need due to
uncertainties in anticipating future needs. (David Taylor, WDT, ¶¶ 20-23; Taylor, Tr., 2/8/17, p.
375, l. 13 to p. 376, l. 25.) [MDWS on reopening, FOF 471.]
814. MDWS explained that its current 9,865 water connections use an average of 7.9
mgd, and it expects that the additional 1,852 applicants, if meters are granted, would increase
usage by 7.5 mgd, or 95 percent, because some of those applicants are asking for multiple meters
for subdivisions. Therefore, 1,852 applicants represent many, many more actual meters. Staff
engineers went through each of the applications, did an estimate for each one, and came up with
the increased usage of 7.5 mgd. (David Taylor, Tr., March 11, 2015, p. 67-69.)
815. MDWS also expects that by 2030 the population of the area served by the
Upcountry System will grow by about 8,424, from 35,251 to 43, 675, with a predicted additional
need for water of 1.65 mgd. (Michele McLean, WDT, ¶ 5; Michele McLean, Tr., March 12,
2015, pp. 120-127; David Taylor, WDT, ¶ 24; David Taylor, Tr., March 11, 2015, pp. 76-78;
Exhs. B-1; B-2, amended table 5; B-16, table 3; Exhs. B-18; B-58.) [MDWS FOF 34-35.]
816. MDWS anticipates that it will need to develop between 4.2 mgd and 7.95 mgd to
meet demands through 2030, including present use, expected increased demand due to
214
population growth, and a percentage of new connections from the current priority list for meters.
(David Taylor, WDT, ¶ 25.)
b. Losses
817. The 1.1-mile Waikamoi Flume transports surface water from the intakes at
Waikamoi, Puohokamoa, and Haʻipuaʻena streams to the Olinda WTP. Water is stored in the 30-
million gallon Waikamoi Reservoirs (two, at 15 million gallons each) and the 100-million gallon
Kahakapao Reservoir, supra, FOF 802.
818. Over the years, the Waikamoi Flume became so leaky that MDWS estimated it
lost as much as 40 percent of total flow through cracks and holes along its whole length. (Exh. B-
54, pp. 27-29; Exh. E-114, p. 8.) [Nā Moku/MTF FOF 907-908.]
819. MDWS could not measure actual losses, because it had no mechanism for
quantifying water levels at either the intake or discharge sites of the Waikamoi Flume. (David
Taylor, First Supplemental Declaration, ¶ 5.) [Nā Moku/MTF FOF 911.]
820. If the reliable capacity of the Olinda WTP is the reported 1.6 mgd, supra, FOF
801, then the flume could have wasted as much as 0.64 mgd (1.6 mgd x 0.40) at that level of
operation. [Nā Moku/MTF FOF 910.]
821. MDWS has just completed replacing the entire Waikamoi Flume. (David Taylor,
Tr., March 11, 2015, pp. 55-59.)
822. Because the new flume isn’t going to be leaking, MDWS assumes that everything
going in will come out. They measure the reservoir levels every day, and also know how much
water is taken out to the water treatment plant. So MDWS will be able to calculate how much
water is coming from the flume on days when the main intake from the dam is dry, which is most
of the days. All of the water coming in will be from the flume, so MDWS will be able to quantify
215
how much water comes in from the flume most of the time. (David Taylor, Tr., March 11, 2015,
p. 60.)
823. There is no way to accurately compare intake versus outtake of the Waikamoi
Flume prior to versus completion of the replacement flume. (David Taylor, Tr., March 11, 2015,
p. 60.)
824. Further, the two 15 million-gallon Waikamoi reservoirs as well as the 2 million-
gallon on-site basin at the Olinda WTP have just been relined. (David Taylor, Tr., March 11,
2015, p. 54-55.)
c. Alternate Sources
825. MDWS has no plans to drill new production wells to serve the Upcountry areas at
the present time. They are very expensive, use a lot of energy, and there are some legal and
procedural difficulties:
1. Water is very heavy, so moving it to higher elevations takes a lot of

energy. Because a lot of the Upcountry System is at 1,000 to 4,000 feet
and the basal aquifer is roughly at sea level, moving water is projected to
cost $1.64 per thousand gallons for distribution from the Kamole-Weir
WTP, $4.07 per thousand gallons at the Piiholo WTP, and $5.93 per
thousand gallons at the Olinda WTP. On top of pumping costs, increased
reliance on ground water sources would require substantial initial capital
expenditures and on-going maintenance. Ground water development also
involves risks due to the uncertainty of the quantity and quality of water
that will be present. MDWS’s current charges for water only average
about $4 per thousand gallons, so just the electrical costs is more than
what MDWS charges overall for its entire operation. (David Taylor, Tr.,
March 11, 2015, pp. 62-65; David Taylor, Tr., March 12, 2015, pp. 17-19,
52; Exh. B-16, pp. 10, 14, 16.) [MDWS FOF 39-43.]
2. MDWS has entered into a Consent Decree in the case of Coalition to

Protect East Maui Water Resources v. Board of Water Supply, County of
Maui, Civil No. 03-1-0008(3), December 2003, which requires that
MDWS conduct vigorous cost/benefit analyses of other water source
options before developing ground water in the East Maui region. On
several occasions, MDWS has tried but been unsuccessful in working
216
within the framework of the consent decree to develop new ground water
sources. (David Taylor, WDT, ¶¶ 29-30; David Taylor, Second
Supplemental Declaration, ¶¶ 26-28; David Taylor, Tr., March 11, 2015,
pp. 64-65; Exhs. B-19, B-20, B-52.)
826. New raw water storage facilities, which would be fed by streams in times of water
surplus for use during times of low flows, are an additional means by which MDWS could
mitigate the effects of stream flow restoration:
1. Currently, MDWS is considering construction of a 100- to 200-million

gallon reservoir at the Kamole-Weir WTP, which has no reservoir, supra,
FOF 804, and has allocated $1.5 million in its FY2015 budget toward land
acquisition for a possible reservoir. The total six-year estimated cost for
the project is $25.25 million. No money has been allocated for design or
construction. (David Taylor, First Supplemental Declaration, ¶¶ 10-11;
David Taylor, Second Supplemental Declaration, ¶ 24; David Taylor, Tr.,
March 11, 2015, pp. 50-53; Exhs. B-16, p. 13 table 13; E-124.) [MDWS
FOF 45-46.]
2. Like new basal groundwater source development, development of new

raw water storage would require significant initial capital expenditures and
on-going maintenance costs. (David Taylor, Tr., March 12, 2015, pp. 19-
24; Exh. B-16, pp. 14, 16 table 4.) [MDWS FOF 47.]
827. Raw water storage at the Kamole WTP is more cost-effective than providing
backup capacity by extensive additions of basal groundwater wells, which require high long-term
energy expenditures. (Exh. E-147, p. 48.) [Nā Moku/MTF FOF 952-953.]
828. Reservoirs mitigate fluctuations in both stream flow and consumer demand, and
mitigations in fluctuations in stream flow allow more of it to be used at the proper time; i.e.,
during drier times when it is most needed for irrigation, by making more water available without
simultaneously taking directly from the water source being protected. (David Taylor, WDT, ¶ 10;
Richard Mayer, Supplemental Declaration, ¶¶ 13-14.) [Nā Moku/MTF FOF 949-950.]
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d. Economic Impact
829. A study conducted for the draft “Maui Water Use and Development Plan
(“WUDP”) Upcountry Final Strategies Report” (July 25, 2009) examined the impacts of
amended IIFS on drought period reliable capacity at the Kamole-Weir WTP. (Exh. E-130.)
830. In 2014, MDWS also commissioned an engineering analysis of the impact to
MDWS if the County’s use of East Maui surface water were reduced or eliminated, based on
documents provided by MDWS, including the July 25, 2009 Draft WUDP for MDWS’s
Upcountry System. (Exh. B-16.)
831. The 2014 review and analysis compared new groundwater sources versus
construction of raw water storage reservoirs to mitigate Upcountry drought conditions. New
reservoirs carry high capital costs but have lower operation and maintenance costs compared to
groundwater wells. New wells carry relatively lower capital costs but also require transmission
and storage improvements to be integrated into the existing water delivery systems, have risks
associated with the uncertainty of the quantity and quality of water that will be present, and have
higher operational costs due to the costs of pumping ground water from basal aquifers at sea
level to the Upcountry system. (Exh. B-16, p. 14.)
832. Life-cycle cost comparisons were made, with new ground water sources and
construction of storage reservoirs carrying similar life-cycle costs. Life-cycle costs incorporate
capital, operating, and maintenance costs over a defined planning period and include inflationary
effects. Over a 25-year period, both new ground water wells and reservoirs would cost about
$33-$35/thousand gallons, for a total of $250 to $260 million for each strategy. (Exh. B-16, p.
15.)
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833. The Kamole-Weir WTP has no storage reservoir, while both the Olinda and
Piiholo WTPs have reservoirs, supra, FOF 802-804. The Kamole-Weir WTP has a production
capacity of 6 mgd and an average production of 3.6 mgd, supra, FOF 801.
834. Under the MOU between EMI and MDWS, MDWS can receive 12 mgd with an
option for an additional 4 mgd, for a total of 16 mgd. During low-flow periods when ditch flows
are greater than 16.4 mgd, both will receive a minimum allotment of 8.2 mgd. If these minimum
amounts cannot be delivered, both will receive prorated shares of the water that is available,
supra, FOF 806-807. In recent periods of low Wailoa Ditch flow, EMI has not restricted the
allotment of water to MDWS according to the terms of the agreement, and MDWS withdrawals
have been limited only by the amounts of water available in the ditch and the physical limitations
of the existing Kamole-Weir WTP intake structures. During drought conditions, MDWS may
withdraw 6 mgd, and what remains is used by HC&S for irrigation. (Exhs. E-130, p. 4; Exh. B-
16, p. 10.)
835. For the period 1922 to 1987, flows in the Wailoa Ditch exceeded 40 mgd more
than 90 percent of the time and exceeded 20 mgd more than 99 percent of the time. (Exh. E-130,
p. 4.)
836. Assuming a drought period exists if water available to MDWS is less than the 6
mgd capacity of the Kamole-Weir WTP, recent existing reliability was 4.5 mgd drought period
yield, with raw water requirements assumed to be 5.0 mgd to provide 4.5 mgd of potable water
capacity.36 (Exh. E-130, p. 6.)
36
The study uses 4.5 mgd or 4.6 mgd for various reasons. 4.6 mgd will be used to simplify the
discussion.
219
837. For the 23,680-day period of record from 1922 to 1987, assuming a daily
withdrawal of 5.0 mgd from the Wailoa Ditch, there was deficient water on 54 days (0.23
percent of the time) with a maximum of 16 consecutive days of deficiency. (Exh. E-130, p. 7.)
838. For the ten-year period 2001 to 2011, the number of days when the Wailoa Ditch
flow was less than 20 mgd was 50 days, and the longest continuous span of no flow was 5 days.
(Exh. B-16, p. 11 table 12.)
839. There would be little or no impact if Wailoa Ditch flows were reduced to 15 mgd.
MDWS would not have full access to the 6 mgd capacity of the Kamole-Weir WTP for 5 days,
the same as for the period 2001 to 2011, supra, FOF 838, and less than the maximum of 16 days
for the period 1922 to 1987, supra, FOF 837. (David Taylor, Tr., March 11, 2015, pp. 145-146;
Exh. B-16, p. 16.)
840. With a 20 mgd reduction in Wailoa Ditch flow and assuming a daily drought
period withdrawal of 5.0 mgd, supra, FOF 836, there would not be sufficient water to provide
reliable drought period capacity without some mitigating actions. For a 23,680 day period, supra,
FOF 837, 5.0 mgd would not be able to be withdrawn for 822 days or 3.47 percent, with 54
consecutive days of deficiency. (Exh. E-130, p. 9.)
841. Note, however, that the deficiency only means that 5 mgd could not be
withdrawn. Lesser amounts could still be withdrawn from the Wailoa Ditch. Furthermore, while
the study defined drought period deficiency as being less than 4.6 mgd of a total capacity of 6
mgd, actual use from the Kamole-Weir WTP has been 3.6 mgd out of the total capacity of 6
mgd, supra, FOF 801.
842. With the addition of a 100-million gallon reservoir at the Kamole-Weir WTP, the
drought period reliable yield with the 20 mgd reduction in Wailoa Ditch flow would be 4.6 mgd,
220
approximately equal to the existing WTP reliable yield without reductions in ditch flows. (Exh.
E-130, p. 10.)
843. With a 200-million gallon reservoir, the drought period reliable yield with the 20
mgd reduction in Wailoa Ditch flow increases to 7.1 mgd, an increase of 2.4 mgd compared to a
100-million gallon reservoir and greater than the total capacity of 6 mgd of the Kamole-Weir
WTP. (Exh. E-130, p. 10.)
844. Estimated costs of a 100- to 200-million reservoir at the Kamole-Weir WTP are
$25.25 million, supra, FOF 826, and life-cycle costs over 25 years are estimated at $33 per
thousand gallons or $250 million, supra, FOF 832. (Exh. B-16, p. 15.)
J. Future Land Use of the Central Maui Fields
845. The lands that had been utilized by HC&S for sugar cultivation are predominantly
zoned as Agricultural District and are situated in the State Agricultural District. (McLean, WDT,
10/17/16, ¶ 4.) [MDWS on reopening, FOF 503.]
846. The use of land designated as Agricultural District is limited to agriculture; land
conservation; agricultural parks; animal and livestock raising (including animal feed lots and
sales yards); private agricultural parks; minor utility facilities; retention, restoration,
rehabilitation, or improvement of buildings, sites, or cultural landscapes of historical or
archaeological significance; or solar energy facilities. Accessory uses are allowed but must be
“incidental or subordinate to, or customarily used in conjunction with” one of the allowed uses.
(Maui County Code (“MCC”) §§ 19.30A.050(A), (B).) [MDWS on reopening, FOF 505.]
847. The minimum lot area for property zoned Agricultural District is two acres, with a
minimum width of 200 feet; the size of farm dwellings is limited to 10% of the total lot area with
a maximum height of 30 feet; and while agricultural lots may be subdivided, there are limits on
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the maximum number of subdivided lots. (MCC §§ 19.30A.030(A), (B), (D), (E), (G).) ).)
[MDWS on reopening, FOF 507.]
848. The Countywide Policy Plan (“CPP”) was adopted in 2010 to provide an over-
arching values statement and policy framework for development of the Maui Island Plan/General
Plan 2030 and the community plans. The CPP sets forth “a series of broad themes and goals,
each supported by more specific objectives, policies and implementing actions.” (Aoki, WDT,
10/17/16, ¶ 5; Exh. B-064, p. 43.) [MDWS on reopening, FOF 508.]
849. Core principles of the CPP include:
a. to “protect the natural environment” to “improve the opportunity to

experience the natural beauty and native biodiversity of the islands for
present and future generations” through policies that “protect and provide
ongoing care for important scenic vista, view plances, landscapes and
open-space resources”;
b. to “promote sustainable land use and growth management,” with the

objective to “improve planning for and management of agricultural land
and rural areas” through policies that “protect prime, productive, and
potentially productive agricultural lands to maintain the islands’
agricultural and rural identities and economies,” “discouraging developing
or subdividing agriculturally designated lands when non-agricultural
activies would be primary uses,” and “conduct agricultural development
planning to facilitate robust and sustainable agricultural activities”; and
c. to “strengthen the local economy,” with objectives such as to “diversify

and expand sustainable forms of agriculture” through policies that
“prioritize the use of agricultural land to feed the local population and
promote the use of agricultural lands for sustainable and diversified
agricultural activities,” “assist farmers to help make Maui County more
self-sufficient in food production,” “support ordinances, programs and
policies that keep agricultural land and water available and affordable to
farmers,” and “support cooperatives and other types of nontraditional and
communal farming efforts.”
(Aoki, WDT, 10/17/16, ¶¶ 4-6; Exh. B-064, pp. 46, 61, 75.) [MDWS on reopening, FOF 509-
511.]
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850. Keeping HC&S/A&B’s lands in agriculture would promote the CPP’s core
principle of maintaining open space and protecting scenic views. (Aoki, WDT, 10/17/16, ¶ 6.)
851. Long-term planning for the County of Maui is controlled by the Maui Island
Plan/General Plan 2030 (“MIP”), which was officially adopted in 2012, and which is “a blue
print that provides direction for future growth, the economy, and social and environmental
decisions on the island through 2030” and which “established a vision, founded on core values
that break down into goals, objectives, policies, and actions.” (Aoki, WDT, 10/17/16, ¶ 7; Exh.
B-065, p. 1-1.) [MDWS on reopening, FOF 512-513.]
852. One of the guiding principles of the Direct Growth Plan of the MIP states:
Protect open space and working agricultural landscapes: In light of continuing

urbanization, the protection of agricultural and open-space resources will depend
on a healthy agricultural industry and progressive planning and regulation.
Planning should utilize agricultural lands as a tool to define the edges of existing
and planned urban communities, apply innovative site design, create buffers along
roadways, provide visual relief and preserve scenic views.
(Exh. B-067, pp. 8-10.) [MDWS on reopening, FOF 517.]
853. The MIP recognizes that “preserving agricultural lands is important for the long
term sustainability of Maui,” and cites multiple reasons for the importance of maintaining
agriculture, such as “agriculture creates a diversity of jobs, generates tax revenue, and produces a
variety of crops for different local and export markets,” “benefits Maui’s tourism industry by
providing green landscapes and enhancing the island’s sense of place,” and “protects land use
options for future generations.” (Exh. B-063, pp. 7-3, 7-7.) [MDWS on reopening, FOF 514.]
854. Goals of the MIP include:
a. “Maui will have a diversified agricultural industry contributing to greater

economic, food, and energy security and prosperity,” which will be
pursued through policies that “strive to substitute food/agricultural product
imports with a reliable supply of locally produced food and agricultural
223
products,” “encourage growing a diverse variety of crops and livestock to
ensure the stewardship of our land while safeguarding consumer safety
and “promote the development of locally-grown and ecologically-sound
biofuels, aquaculture and forest products.”
b. “Reduce the island’s dependence on off-island agricultural products…”

through policies that “support an incentive package for productive
Agricultural Lands which aims to ensure agricultural viability for small
and commercial-scale agricultural producers” and “actively look to
acquire land and provide infrastructure to expand the agricultural park and
establish new agricultural parks.” (Exh. B-066, pp. 4-19, 4-20, B-063, p.
7-9.) [MDWS on reopening, FOF 519, 521.]
855. Objectives include to “significantly reduce the loss of productive agricultural
lands” through policies that “strongly discourage the conversion of productive and important
agricultural lands (such as sugar, pineapple and other produce lands) to rural or urban use…”,
“provide incentives for landowners to preserve and protect agricultural lands from
development…”, “support and promote the viability of Maui’s agricultural businesses…”, and
“maintain or increase agriculture’s share of the total island economy” through policies
“encouraging the continued viability of sugar cane production, or other agricultural crops, in
central Maui and all of Maui island.” (Exhs. B-063, pp. 7-8, B-066, pp. 4-20.) [MDWS on
reopening, FOF 515-516.]
856. Community plans set for the current and anticipated conditions of the designated
region, and advance planning goals, objectives, policies, and implementation considerations to
guide decision making for the region that is consistent with the Maui Island Plan/General Plan,
while recognizing the unique values and attributes of Maui’s different communities. (Aoki,
WDT, 10/17/16, ¶ 12.) [MDWS on reopening, FOF 522.]
857. The central Maui fields fall within four Community Plan Districts:
a. The Makawao-Pukalani-Kula/Upcountry Maui Community Plan

(“MPKCP”) was adopted in 1996 and includes the town of Makawao,
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Pukalani, Kula, Ulupalakua, Haliimaile, Waiakoa, Keokea, Waiohuli,
Kanaio, Olinda, Omaopio, and Pulehu, as well as the Kula Agricultural
Park.
i. The MPKCP encourages policies that “provide for the preservation
and enhancement of agricultural lands and operations, emphasizing
the importance of promoting diversified agriculture to the region’s
economic base and lifestyle,” “protect existing agricultural
operations from urban encroachment,” “preserve agriculture by
actively promoting locally grown agricultural products,”
“encourage the continuation of sugar, pineapple, cattle ranching,
and diversified agriculture as major agricultural activities in the
region and at the same time encourage the pursuit of alternative
agricultural activities,” “encourage the development of cooperative
agricultural development programs between the County and the
Department of Hawaiian Home Lands to support diversified
agricultural pursuits.”
ii. In terms of land use, the MPKCP calls for the development of
policies which “recognize the value of open space, including
agricultural lands and view planes to preserve the region’s rural
character,” “discourage speculation of agricultural lands,” “
encourage land use patterns that will…support the long term
viability of agriculture,” “encourage the use of mechanisms such as
land trusts and farm trusts to preserve open space and agricultural
activity,” “make available agricultural lands for those who wish to
farm,” and “explore the development of an additional Ag park.”
iii. The MPKCP’s environmental recommendations encourage

policies that would “preserve environmental resources by
maintaining important agricultural lands as an integral part of the
open space setting in each community,” and “recognize
agricultural lands as an essential ingredient to the upcountry
atmosphere.”
(Aoki, WDT, 10/17/16, ¶¶ 12-13, 15; Aoki, Tr., 2/8/17, p. 396, ll. 12-22; Exhs. B-
068, B-069, pp. 18-20, 23, 26, 30.) [MDWS on reopening, FOF 523-528.]
b. The Paia-Haiku/North Maui Community Plan (“PHCP”) was adopted in
1995 and includes the towns of Spreckelsville, Paia, Haiku, Kuau, Kuaiha,
and Pauwela.
i. For land use, the PHCP promotes policies that “ensure that
appropriate lands are available to support the region’s current and
future agricultural industries, including sugar, pineapple,
diversified agriculture and aquaculture” and “identify prime or
225
productive agricultural lands and develop appropriate regulations
for their protection.”
ii. Policies promoted by the PHCP for economic activity include

“(m)aintain(ing) agriculture as the primary economic activity.
Enhance opportunities for the cultivation and processing of local
agricultural products and encourage the establishment of
agricultural parks and support services (i.e., co-op facilities for
distribution, marketing and sales) to enhance diversified
agricultural activities,” and “ encourage the State Department of
Agriculture to draft or propose a master plan to promote diversified
agriculture by expanding agricultural programs, identifying the
specific uses of those agricultural lands, and locating a site(s) for
an agricultural park.”
(Aoki, WDT, 10/17/16, ¶ 17; Exh. B-070, p. 14.) [MDWS on reopening, FOF
529-531.]
c. The Wailuku-Kahului/Central Maui Community Plan (“WKCP”) was

adopted in 2002 and includes the communities of Wailuku, Kahului,
Waiehu, Waihee, Waikapu, and Puunene.
i. In terms of economic activity, the WKCP promotes policies that

“support agricultural production so agriculture can continue to
provide employment and contribute to the region’s economic well-
being” and “support the establishment of agricultural parks for
truck farming, piggery operations, bee keeping and other
diversified agricultural operations, within large unsubdivided
agricultural parcels and in locations that are compatible with
residential uses.”
ii. In regards to the environment, the WKCP encourages policies that

“preserve agricultural lands as a major element of the open space
setting that which borders the various communities within the
planning region. The close relationship between open space and
developed areas is an important characteristic of community
form.”
iii. In regards to land use, the WKCP encourages policies that will
“ensure that adequate lands are available to support the region’s
present and future agricultural activities,” “identify prime or
productive agricultural lands, and develop appropriate regulations
for their protection.”
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(Aoki, WDT, 10/17/16, ¶ 19; Exh. B-071, pp. 12-14, 26.) [MDWS on reopening,
FOF 532-535.]
d. The Kihei-Makena/South Maui Community Plan (“KMCP”) was adopted
in 1998 and includes the towns of Kihei, Wailea, Makena, and Maalaea.
i. KMCP promotes land-use policies that would “prevent
urbanization of important agricultural lands” and “allow special
permits in the State Agricultural Districts to accommodate unusual
yet reasonable uses including: (1) limited agriculturally related
commercial, public and quasi-public uses serving the immediate
community; (2) uses clearly accessory or subordinate to a principal
agricultural use on the property; (3) public facility uses such as
utility installations or landfills whose location depends on technical
considerations; and (4) extractive industries such as quarrying,
where the operation would not adversely affect the environment or
surrounding agricultural uses.”
ii. MCP promotes economic policies that “provide for the

preservation and enhancement of important agricultural lands for a
variety of agricultural uses, including sugar cane, diversified
agriculture and aquaculture.”
(Aoki, WDT, 10/17/16, ¶ 21; Exh. B-072, pp. 18-19.) [MDWS on reopening, FOF
536-538.]
858. The County of Maui has expressed that it “is in strong support of keeping the
lands used by HC&S/A&B in agriculture.” The County’s position “is largely premised on the
policies set forth in Maui Island Plan/General Plan 2030, the Countywide Policy Plan, and the
various Community Plans, which promote a variety of interests including economic diversity,
maintenance of view planes, open space and fire protection.” (MDWS Opening Brief at 5;
MDWS Rebbutal Brief at 6; Exhs. B-063, pp. 7-2 to 7-10, B-064, pp. 46, 60, 61, 75.) [HC&S on
reopening, FOF 418.]
859. MTF states that “we do want to see agriculture on this land and we do support
stream flow being set at a level that would allow that, but we do also think this an opportunity to
provide for some of those instream uses that, unfortunately, had to be left at the door…” “You
227
can’t have long-term, viable agriculture if you’re not making a profit,” and MTF supports
commercial, for-profit agriculture. (Perez, Tr., 2/8/17, p. 435, ll. 14-18, p. 437, ll. 1-11.)
860. MTF’s report Mālama ‘Āina: A Conversation About Maui’s Farming Future notes
that “(t)he closure of the HC&S sugarcane enterprise is an opening to the next generation of
diversified farm businesses,” and that HC&S’s “large, consolidated 35,000-acre block of central
Maui farmland can be used to generate multiple income streams while growing food and fuel
profitably for local consumption and value-added export.” (Exh. E-160, preface and p. 1.)
[HC&S on reopening, FOF 419.]
861. 22,254 acres of land irrigated with East Maui stream water are designated as
Important Agricultural Lands (“IAL”) pursuant to HRS Chapter 205, Part III. The IAL
designation “is a commitment to keep these lands in productive agriculture over the long term.”
(Volner, WDT, 10/17/16, ¶ 12.) [HC&S on reopening, FOF 423.]
862. MTF states that “We know that there was a purchase and sale agreement as far
back as in July (for 339 acres)…So to me that’s just consistent with the overall business model
that we’re going to hold the land until we can either sell it or develop it. I think that the lands that
are in important agricultural designation are—have a higher likelihood of staying in agriculture
for a long time, which we would prefer and we would encourage, but those lands that are not in
IAL designation, I consider that to be a temporary predevelopment phase and I don’t think those
lands should receive the same weight when we’re considering setting stream flow standards.”
(Perez, Tr., 2/8/17, p. 433, l. 12 to p. 434, l. 6.)
228
K. EMI’s Management of the Diversions and the Interim Restorations, and Any
Issues Concerning the Integrity of the EMI Ditch System
863. The ways to reduce the amount of water that is collected and transported in the
EMI ditch system were previously described:
a. There are primarily four ways to reduce the amount of water that is
collected and transported in the EMI ditch system: 1) on streams that have
controlled diversions, by closing or reducing the diversion intake gate
openings; 2) on stream diversions that have sluice gates, by partially or
completely opening the sluice gates; 3) on streams that have radial gates
between the diversions and the ditch, by completely closing the radial
gates; and 4) by partially or or completely closing the gates on the main
control points on the ditches themselves to limit the amount of water that
can pass each control point, the effect of which is to redirect any excess
water into the stream crossed by the ditch where the control point is
located, supra, FOF 525.
b. Controlled diversions have intake gate openings, which are typically

constructed with wooden boards or metal plates, used to regulate how
much water can flow from the stream into the diversion structure, supra,
FOF 526.
c. Sluice gates are openings within the basin of the diversions that can be
opened to discharge the water collected in the diversion back into the
stream. Periodically opening sluice gates to flush out silt, gravel, and other
debris that collects in the diversion structures is one of the normal means
of maintaining the proper functioning of the ditch system. The effect of
opening a sluice gate is to return water to the stream after it has entered
the diversion structure. It may not always cause 100% of the water that
entered the diversion to be discharged back into the stream, because
during periods of heavy rainfall, water may back up in the diversion faster
than it can be discharged through the sluice gate, in which case some
water will still enter the ditch. During most flow conditions, however,
completely opening the sluice gate will return practically all of the water
to the stream, supra, FOF 527.
d. Radial gates are located along the tunnel reaches of the ditch and were
designed to automatically open or close in relation to the water level in the
tunnel. The gates are controlled by a float located in a float chamber in the
tunnel that is connected to a cable that lifts or lowers the radial gate,
depending on the water level in the tunnel. The operation of the gate can
be adjusted by piping water to the float chamber and closing the drain
valve on the chamber to raise the float to maintain the gate in the closed
position, supra, FOF 528.
229
e. There are several main ditch control points on each of the ditches: 1) 6 on
the Koolau Ditch; 2) 4 on the Spreckels Ditch; 3) 3 on the Manuel
Luis/Center Ditch; 4) 2 on the Wailoa Ditch/Tunnel; 5) 4 on the New
Hamakua Ditch; 6) 3 on the Lowrie Ditch; and 7) 2 on the Haiku Ditch,
supra, FOF 529.
f. EMI manages the reduction in diversions through a combination of

measures that involve adjusting the intake control gates on the streams
with controlled diversions, opening the sluice gates at the diversion on
streams that have sluice gates, adjusting the operation of radial gates on
the streams that have radial gates, and partially or completely closing the
gates on main ditch control points. The precise combination of measures at
any point in time depends on the amount of water to serve the needs of
HC&S and MDWS, and the amount of rainfall that is occurring in the
watersheds that span the ditch system, supra, FOF 530.
864. The closures of intakes to meet the current level of reduced needs of HC&S and
MDWS were also previously described:
a. At the time of the hearing, EMI had closed the intakes on all of the
streams with controlled diversions, opened the sluice gates on the majority
of the diversions that have sluice gates, closed the radial gates on a couple
of streams with radial gates, and has closed the 6 main ditch control points
on the Koolau Ditch. The sluice gates have been opened on Nuaʻailua
Stream, Alo Stream, and Waikamoi Stream on the Center Ditch, and three
of the four sluice gates of the main intakes on Honomanū Stream. One of
the sluice gates on Honomanū Stream cannot be opened because it is
inoperable, but water is released into the west tributary of Honomanū
Stream (Uluwini Stream) further down at a control gate in the Spreckels
Ditch, supra, FOF 531.
b. The effect of these measures is to rely principally on water entering the
ditch system west of Piʻinaʻau Stream (i.e., from the Honomanū and Huelo
license areas) to meet the current level of reduced needs of HC&S and
MDWS. With these measures in place, water flows in the Wailoa Ditch at
Maliko Gulch have been reduced to 20-25 mgd, supra, FOF 532.
c. The Wailoa Ditch is the highest of EMI’s ditches. Nearly all the flows
from the four license areas are from the Wailoa Ditch (83%). When the
flow in the Wailoa Ditch is extremely low, there are little or no flows in
the lower ditches. Under drought conditions, a different set of gate
adjustments would be implemented, because EMI expects that it would
not be possible to meet even the current lowered needs without importing
water from further east, in the Nahiku and Keanae areas, where base flows
are more reliable and there is a ground water contribution to the Koolau
230
Ditch, in order to maintain a consistent flow in the Wailoa Ditch, supra,
FOF 533-534.
d. As irrigation requirements increase from the ongoing implementation of
diversified agriculture, EMI expects to implement a selective opening of
board gates, readjusting the opening of sluice gates, resetting of radial
gates, and readjusting of main ditch control gates to increase the amount
of water brought into the ditch system. These measures will be dictated by
the flow levels needed at Maliko Gulch and the rainfall patterns
throughout the East Maui watersheds, supra, FOF 535.
865. Also previously described is the state of implementation to restore the streams
that EMI has agreed to fully and permanently restore (from west to east: Honopou, Hanehoi [and
its tributary, Puolua], Piʻinaʻau, Palauhulu, Waiokamilo, Kualani,37 and East and West
Wailuanui Streams):
a. EMI has: 1) closed the intakes and opened the sluice gates on the
diversions on East and West Wailuanui Streams on the Koolau Ditch; 2)
opened the sluice gate on Palauhulu Stream on the Koolau Ditch; 3)
opened the sluice gates on the diversions on Hanehoi and Puolua Streams
on the Haiku Ditch; and 4) opened the sluice gate and closed the radial
gate on the Wailoa Ditch, made modifications to the intake on the New
Hamakua Ditch, opened the sluice gate and closed the intake diversion on
the Lowrie Ditch, and modified the diversion on the Haiku Ditch on
Honopou Stream, supra, FOF 536.
b. Further measures to achieve the full and permanent restoration of these
streams will be taken after EMI obtains all the necessary permits and
government approvals. On September 16, 2016, EMI submitted its
applications to abandon the following stream diversions: Honopou,
Hanehoi (Puolua), Piʻinaʻau, Palauhulu, Waiokamilo (and its easternmost
tributary, East Waiokamilo Stream, previously misidentified as Kualani
Stream), and East and West Wailuanui Streams. Other pending approvals
and concurrences will be needed from the County of Maui, DLNR’s
Office of Conservation and Coastal Lands, and the U.S. Army Corps of
Engineers, supra, FOF 537.
37
Actually, the most eastern tributary of Waiokamilo Stream and now known as “East
Waiokamilo Stream,” supra, FOF 596, 598.
231
866. The reduction in diversions does not by itself compromise the structural integrity
of the EMI ditch system so long as the complete system, including the open ditches and
roadways, continues to be maintained as a single, coordinated system. Consistently reduced
flows will increase the amount of maintenance required of the open ditches in the system,
because it will increase the surface areas that will need to be periodically cleared of vegetation,
supra, FOF 538.
II. CONCLUSIONS OF LAW

A. Burden and Standard of Proof
1. “In the context of IIFS petitions, the water code does not place a burden of proof
on any particular party; instead, the water code and our case law interpreting the code have
affirmed the Commission’s duty to establish IIFS that ‘protect instream values to the extent
practicable’ and ‘protect the public interest.’” Waiāhole II, 105 Hawaiʻi at 11, 93 P. 3d at 653.
2. The CCH was being held to establish IIFS and not to determine nor limit which
parties may use waters available after the IIFS are established. HRS § 174C-71 (2) (D).
3. Legal conclusions made in this proceeding pertaining to a particular party’s water
rights, traditional and customary rights, water use requirements, alternative water sources, and
system losses are made without prejudice to the rights of any party and the Commission to revisit
these issues in any future proceeding.
4. The legislature shall provide for a water resources agency which, as provided by
law, shall set overall water conservation, quality and use policies; define beneficial and
reasonable uses; protect ground and surface water resources, watersheds and natural stream
environments; establish criteria for water use priorities while assuring appurtenant rights and
232
existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii’s
water resources. Art. XI, § 7, Hawaiʻi State Constitution.
5. It is recognized that the waters of the State are held for the benefit of the citizens
of the State. It is declared that the people of the State are beneficiaries and have a right to have
the waters protected for their use. HRS § 174C-2(a).
6. The state water code shall be liberally interpreted to obtain maximum beneficial
use of the waters of the State for purposes such as domestic uses, aquaculture uses, irrigation and
other agricultural uses, power development, and commercial and industrial uses. However,
adequate provision shall be made for the protection of traditional and customary Hawaiian rights,
the protection and procreation of fish and wildlife, the maintenance of proper ecological balance
and scenic beauty, and the preservation and enhancement of waters of the State for municipal
uses, public recreation, public water supply, agriculture, and navigation. Such objectives are
declared to be in the public interest. HRS § 174C-2(c).
7. “‘Water’ or ‘waters of the State’ means any and all water on or beneath the
surface of the ground, including natural or artificial watercourses, lakes, ponds, or diffused
surface water and water percolating, standing, or flowing beneath the surface of the ground.”
HRS § 174C-3.
8. “All waters of the State are subject to regulation under the provisions of this
chapter unless specifically exempted. No provision of this chapter shall apply to coastal waters.
Nothing in this chapter to the contrary shall restrict the planning or zoning power of any county
under chapter 46.” HRS § 174C-4 (a).
9. “No state or county government agency may enforce any statute, rule, or order
affecting the waters of the State controlled under the provisions of this chapter, whether enacted
233
or promulgated before or after July 1, 1987, inconsistent with the provisions of this chapter.
Nothing in this chapter to the contrary shall restrict the power of any county to plan or zone as
provided in chapter 46.” HRS § 174C-4 (b).
10. The Commission “shall have exclusive jurisdiction and final authority in all
matters relating to implementation and administration of the state water code, except as
specifically provided in this chapter.” HRS § 174C-7.
11. “The commission shall have jurisdiction statewide to hear any dispute regarding
water resource protection, water permits, or constitutionally protected water interests, or where
there is insufficient water to meet competing needs for water, whether or not the area involved
has been designated as a water management area under this chapter. The final decision on any
matter shall be made by the Commission.” HRS § 174C-10.
12. In setting an IIFS, the Commission “need only reasonably estimate instream and
offstream demands.” (In re ‘Īao Ground Water Management Area High-Level Surface Water
Use Permit Applications and Petition to Amend Interim Instream Flow Standards of Waihe‘e
River and Waiehu, ‘Īao, and Waikapu Streams Contested Case Hearing (“Nā Wai ʻEhā”), 128
Haw. 228, 258; 287 P.3d 129, 159 [(2012)].); (In re Water Use Permit Applications (“Waiāhole
I”), 94 Haw. 97, 155 n.60; 9 P.3d 409, 467 (2000).
13. “In requiring the Commission to establish instream flow standards at an early
planning stage, the Code contemplates the designation of the standards based not only on
scientifically proven facts, but also on future predictions, generalized assumptions, and policy
judgments.” Waiāhole I, 94 Haw. at 155; 9 P.3d at 467.
234
B. Case Law
14. In Ka Pa‘akai O Ka ‘Aina v. Land Use Commission, 94 Hawai‘i 31, 7 P.3d 1068
(2000) (“Ka Pa‘akai”), the Hawai‘i Supreme Court provided an analytical framework to
effectuate the State’s obligation to protect native Hawaiian customary and traditional practices
while reasonably accommodating competing privates interests. In particular, the Court stated
that findings and conclusions as to the following must be made:
a. The identity and scope of "valued cultural, historical, and natural

resources" in the petition area;
b. The extent to which those resources - including traditional and

customary native Hawaiian rights - will be affected or impaired by
the proposed action; and
c. The feasible action, if any, to be taken to reasonably protect native

Hawaiian rights if they are found to exist.
Id., 94 Hawai‘i at 47, 7 P.3d at 1084.
15. In setting an IIFS, the Commission “need only reasonably estimate instream and
offstream demands.” ((In re ‘Īao Ground Water Management Area High-Level Surface Water
Use Permit Applications and Petition to Amend Interim Instream Flow Standards of Waihe‘e
River and Waiehu, ‘Īao, and Waikapu Streams Contested Case Hearing (“Nā Wai ʻEhā”), 128
Haw. 228, 258; 287 P.3d 129, 159 (2012).); (In re Water Use Permit Applications (“Waiāhole
I”), 94 Haw. 97, 155 n.60; 9 P.3d 409, 467 (2000).)
16. “In requiring the Commission to establish instream flow standards at an early
planning stage, the Code contemplates the designation of the standards based not only on
scientifically proven facts, but also on future predictions, generalized assumptions, and policy
judgments.” (Waiāhole I, 94 Haw. at 155; 9 P.3d at 467.)
235
C. IIFS Criteria
17. “The protection of instream uses statewide shall be guided by the following
general principles:
(1) The quality of the stream systems statewide shall be protected and enhanced where
practicable. Accordingly, where practicable, streams should be maintained with water
sufficient to preserve fish, wildlife, scenic, aesthetic, recreational, and other instream
uses, and stream systems should be retained substantially in their natural condition...
(4) In determining flow requirements to protect instream uses or in assessing stream

channel alterations, consideration should be given to the maintenance of existing non-
instream uses of economic importance and the preservation of stream waters for
potential non-instream uses of public benefit.
(5) In order to avoid or minimize the impact on existing uses when preserving,
enhancing, or restoring instream values, the commission shall consider physical
solutions, including water exchanges, modifications of project operations, changes in
points of diversion, uses of water from alternative sources, or any other solutions.”
Haw. Admin. Rule § 13-169-5.
18. “‘Instream flow standard’ means a quantity or flow of water or depth of water
which is required to be present at a specific location in a stream system at certain specified times
of the year to protect fishery, wildlife, recreational, aesthetic, scenic, and other beneficial
instream uses.” (HRS § 174C-3.)
19. “‘Interim instream flow’ standard means a temporary instream flow standard of
immediate applicability, adopted by the Commission without the necessity of a public hearing,
and terminating upon the establishment of an instream flow standard. ” (HRS § 174C-3.)
20. “In considering a petition to adopt an interim instream flow standard, the
commission shall weigh the importance of the present or potential instream values with the
importance of the present or potential uses of water for noninstream purposes, including the
economic impact of restricting such uses.” (HRS § 174C-71(2)(D).)
236
21. “‘Instream use’ means beneficial uses of stream water for significant purposes
which are located in the stream and which are achieved by leaving water in the stream. Instream
uses include, but are not limited to:
a. Maintenance of fish and wildlife habitats
b. Outdoor recreational activities
c. Maintenance of ecosystems such as estuaries, wetlands, and stream vegetation
d. Aesthetic values such as waterfalls and scenic waterways
e. Navigation
f. Instream hydropower generation
g. Maintenance of water quality
h. The conveyance of irrigation and domestic water supplies to downstream points
of diversion
i. The protection of traditional and customary Hawaiian rights.”
(HRS § 174C-3.)
22. “‘Noninstream’ use means the use of stream water that is diverted or removed
from its stream channel and includes the use of stream water outside the channel for domestic,
agricultural, and industrial purposes.” (HRS § 174C-3.)
23. “‘Domestic use’ means any use of water for individual personal needs and for
household purposes such as drinking, bathing, heating, cooking, noncommercial gardening, and
sanitation.” HRS § 174C-3.
24. “Interim instream flow standards may be adopted on a stream-by-stream basis or
may consist of a general instream flow standard applicable to all streams within a specified
area.” HRS § 174C-7(2)(F).

237
25. The value of water that is diverted, only to be lost due to avoidable or
unreasonable circumstances, is unlikely to outweigh the value of retaining the water for instream
uses. Therefore, the Commission should consider whether system losses experienced by diverters
are unreasonable, and whether reduction of such losses is reasonably practicable. Nā Wai ʻEhā,
128 Hawaiʻi at 257-258, 287 P.3d at 158-159.
26. The availability of alternative water sources is a consideration in the weighing of
instream values with noninstream purposes when establishing IIFS, because the availability of
alternative sources diminishes the “importance” of diverting stream water for noninstream use.
Nā Wai ʻEhā, 128 Hawaiʻi at 259, 287 P.3d at 160.
27. The Commission may prioritize amongst public trust resources and balance
between competing interests and to conserve potable aquifer water, that could be used for
drinking water, instead of allowing the potable water to be used for agriculture because the
Commission is entitled to consider the future water needs of Hawai‘i and its people in fulfilling
the State’s obligation to protect, control and regulate the use of Hawai‘i’s resources for the
benefit of its people. In Re Water Use Permit Applications, No. 28108, 2010 WL 4113179 at 11
(Haw. App. Oct. 13, 2010) (mem. op.) (“Waiahole III”).
D. Instream Uses
1. Maintenance of Fish and Wildlife Habitats
28. The best scientific information currently available indicates that 64% of median
base flow (BFQ50) generally represents the flow necessary to restore 90% of the habitat in a
stream (H90). Absent any physical barriers to upstream or downstream migrations or
interruptions in connectivity, the H90 flow is believed to provide suitable conditions for growth,
reproduction, and recruitment of native stream animals as well as protection of traditional and
238
customary native Hawaiian gathering rights, which are affected by the size of native animal
populations in a stream.
29. Certain streams, because of the presence of biological diversity, the potential for
habitat restoration, and a history of stream diversions, would greatly benefit from IIFS set at H90.
30. Other streams, because of the geomorphology of the stream or the presence of
groundwater input through the presence of streams, are gaining streams and no additional release
of water past the diversions are believed necessary to maintain habitat below the diversions at
this time. To allow for some movement of biota, these streams should allow for a minimum
connectivity flow across diversion structures to allow for passage of biota upstream. This
minimum connectivity flow would be twenty percent (20%) of the instream flow.
31. The Commission’s expectation is that restoring flows to streams that are spread
out geographically will: 1) provide greater protection against localized habitat disruptions; 2)
produce a wider benefit to estuarine and near-shore marine species; and 3) result in more
comprehensive ecosystem function across the entire East Maui watershed.
2. Outdoor recreational activities
32. Streams in East Maui, specifically Makapipi, Hanawī, Waikamoi, East Wailuaiki,
West Wailuaiki, Wailuanui, Waikamilo, Ohia, Honomanū, Waikamoi, Hanehoi, and Honopou,
have significant outdoor recreational activities that consist primarily of: camping, hiking, fishing,
hunting, swimming, and scenic views.
33. These recreational activities will not be impaired by the proposed actions in this
decision but instead they will likely be improved by increasing stream flows.
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3. Maintenance of ecosystems such as estuaries, wetlands, and stream
vegetation
34. East Wailuaiki, West Wailuaiki and Waiohue Streams have estuaries.
35. All streams except for Waiaaka and Ohia Streams have palustrial wetlands in the
upper watershed of the hydrological unit and have not been affected by diversions.
36. Restoration of streamflow is likely to improve these ecological functions of
estuaries.
4. Aesthetic values such as waterfalls and scenic waterways
37. Nineteen streams in east Maui currently have aesthetic values, primarily
constituted of waterfalls, some including plunge pools, and to a lesser extent springs. The
streams include: Makapipi, Hanawī, Kapaula, Waiaaka, Paʻakea, Waiohue, Kopiliula , West
Wailuaiki, East Wailuaiki, Wailuanui, Waiokamilo, Palauhulu, Piʻinaʻau, Honomanū, Punalau,
Haʻipuaʻena, Puohokamoa, Waikamoi, and Honopou.
38. Restoration and increased streamflow from previously diverted streams would
increase aesthetic values in certain streams.
5. Navigation
39. Navigation is not a use in East Maui streams.
6. Instream hydropower generation
40. Instream hydropower generation is not a use in East Maui streams.
7. Maintenance of water quality
41. Streams that appear on the 2006 List of Impaired Waters in Hawaii, Clean Water
Act § 303(d), include: Hanawī, Pua‘aka‘a, East Wailuaiki, West Wailuaiki, Ohia, Honomanū,
Punalau, Haʻipuaʻena, Puohokamoa, and Waikamoi streams.
240
42. Of the ten streams that are on the 2006 List of Impaired Waters in Hawaii, six
streams will have their flows increased which could benefit water quality in these streams.
8. The conveyance of irrigation and domestic water supplies to

43. Twelve of the streams have registered stream diversions that were declared for
domestic or irrigation purposes other than for use by EMI or MDWS. These stream are:
Honopou, Hanehoi, Waikamoi, Haʻipuaʻena, Honomanū, Nuaʻailua, Piʻinaʻau, Ohia,
Waiokamilo, Waiohue, and Makapipi.
44. Huelo and Hanehoi Streams in particular provide water to a large number of
domestic users, approximately thirty families totaling approximately one hundred people.
45. The diversion of streams for irrigation and municipal domestic water supplies are
addressed as noninstream uses.
46. Use of the streams for conveyance of water for the cultivation of taro are
addressed under the protection of traditional and customary Hawaiian rights.
9. The protection of traditional and customary Hawaiian rights
47. The maintenance of instream flows is important to the protection of traditional
and customary Hawaiian rights for gathering, recreation, and the cultivation of taro through the
recognition of appurtenant rights.
48. One of the public trust purposes is native Hawaiian and traditional and customary
rights, including appurtenant rights. Waiāhole I, 94 Hawaiʻi at 136-138, 9 P.3d at 448-450.
49. Traditional and customary Hawaiian rights are personal rights “customarily and
traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a
tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to
241
1778, subject to the right of the State to regulate such rights.” Haw. State Constitution, Article
XII, § 7.
a. Traditional and customary Hawaiian rights
50. Traditional and customary Hawaiian rights are personal rights “customarily and
traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a
tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to
1778, subject to the right of the State to regulate such rights.” Haw. State Constitution, Article
XII, § 7.
51. In Public Access Shoreline Hawai‘i v. Hawai‘i County Planning Commission, 79
Hawai‘i 425, 903 P.2nd 1246 (1995), (“PASH”), the Hawai‘i Supreme Court of Appeals stated:
The State’s power to regulate the exercise of customarily and

traditionally exercised Hawaiian Rights . . . necessarily allows the State to
permit development that interferes with such rights in certain
circumstances . . . . Nevertheless, the State is obligated to protect the
reasonable exercise of customarily and traditionally exercised rights of
Hawaiians to the extent feasible.
Id. at 450 n.43, 903 P.2d at 1271 n.43. Therefore, not all appurtenant rightsholders have
traditional and customary Hawaiian rights, because appurtenant rights are property rights held by
any owner of the appurtenant lands, while traditional and customary Hawaiian rights are personal
rights.
52. The Intermediate Court of Appeals in State v. Pratt, 124 Hawai‘i 329, 243 P.3d
289 (App. 2010) (“Pratt”), summarized the cases concerning the protections for customary and
traditional native Hawaiian access, water, and gathering rights from Kalipi v. Hawn Trust Co.,
Ltd., 66 Haw. 1, 656 P.2d 745 (1982), to State v. Hanapi, 89 Hawaiʻi 177, 970 P.2d 485 (1999).
242
See Pratt, 124 Hawai‘i at 342, 243 P.3d at 302. The Court expressed an “essential characteristic
of protected native Hawaiian rights” as follows:
Hawai‘i law protects practices “associated with the ancient way of life”
that have been continued, without harm to anyone. Kalipi, 66 Haw. at 10,
656 P.2d at 751. Put another way, the rights must have been “customarily
and traditionally held by ancient Hawaiians.” PDF v. Paty, 73 Haw. at
619, 837 P.2d at 1271. PASH reiterated the threshold requirement that “it
is established that the application of a custom has continued in a particular
area” and “stress[ed] that … non-traditional uses are not permitted.” 79
Hawai‘i at 442, 447, 903 P.2d 1263, 1268. PASH reaffirmed that
November 25, 1892 is the date by which Hawaiian usage must have been
established in practice to fall within the protection of the law.
Id., 124 Hawai‘i at 352-53, 243 P.3d at 312-13.
53. The Hawaii Supreme Court, in affirming the Intermediate Court of Appeals’
decision in Pratt, clarified that consideration of the exercise of native Hawaiian rights requires a
balancing of the respective interests and the harm and consideration of the totality of the
circumstances. State v. Pratt, 127 Hawaiʻi 206, 217, 277 P.3d 300, 311 (2012)(Pratt II).
54. Pratt II is instructive for the reminder that even when a customary and traditional
practice has been shown to exist in an undeveloped area, that all of the circumstances must be
considered in deciding whether to retain the exercise of such traditional and customary practice.
Id.
55. In order for traditional and customary Hawaiian rights to be protected by the
constitution and state law, it must meet the following minimum criteria:
a. it is being exercised by descendants of native Hawaiians who inhabited the

Hawaiian Islands prior to 1778 (Haw. State Constitution, Article XII, § 7);
b. the claimed right is constitutionally protected as a customary or traditional

native Hawaiian right as codified in article XII, § 7 of the Hawaiʻi
Constitution, or §§ 1-1 or 7-1, HRS; and
243
c. the exercise of the right occurred on undeveloped or less than fully developed
land.
Pratt, 124 Hawaiʻi at 349, 243 P.3d at 309.
56. A claimed right is constitutionally protected as a customary or traditional native

Hawaiian right under article XII, § 7 of the Hawaiʻi Constitution, or §§ 1-1 or 7-1, HRS
if the following is shown:
a. the practice must be related to extended family needs; the purpose must be to
fulfill a responsibility related to subsistence, religious or cultural needs of
one’s family or extended family;
b. the traditional or customary native Hawaiian practice must be traceable to at

least November 25, 1892;
c. the practice cannot be for a commercial purpose; and
d. the manner in which the practice is conducted must be consistent with

tradition and custom and the practice must be conducted in a respectful
manner.
Pratt, 124 Hawaiʻi at 349-55, 243 P.3d at 309-315.
57. The record is not clear whether any person holds traditional and customary
Hawaiian rights in the East Maui area, whether for gathering rights or for farming in traditional
and customary ways. There was testimony that at least some Nā Moku members and their ‘ohana
gathered for subsistence and cultural purposes in the East Maui area, and wetland taro was being
grown or attempted to be grown with traditional and customary practices, sometimes by
members who have lived in the area for generations. (See, Edward Wendt, WDT, ¶ 2; Edward
Wendt, Tr., March 9, 2015, p. 8; Terrance Akuna, Tr., March 10, 2015, pp. 17-19; Norman
Martin, Tr., March 9, 2015, pp. 113-114; Jerome Kekiwi, Tr., March 9, 2015, p. 202; Joseph
Young, Tr., March 9, 2015, pp. 222-223; see FOF 657-660.)
58. No evidence was presented that the native Hawaiian customary and traditional
gathering rights were traceable to at least November 25, 1892.

244
59. For purposes of this contested case only, it is assumed that there are persons who
can show that they possess native Hawaiian customary and traditional gathering rights that can
be traced to at least November 25, 1892.
60. As indicated above, IIFS will be set in this case in certain streams to achieve at
least one of the following: full habitat restoration; habitat restoration to H90; ensuring
connectivity flow over diversions to allow passage of stream biota.
61. The restoration of stream flows in this manner is intended to both restore the
stream life and to provide additional opportunities for the exercise of customary and traditional
gathering rights.
b. Appurtenant rights
62. There are no designated surface water management areas under HRS §§ 174C-45
and -46 in the East Maui region from which the EMI Ditch System diverts water.
63. Water rights in non-designated areas are governed by the common law. Koolau
Agr. Co. v. Commission on Water Resource Management (“Koolau”), 83 Hawaiʻi 484, 491, 927
P.2d 1367, 1374 (1996).
64. Appurtenant rights are rights to the use of water utilized by parcels of land at the
time of their original conversion into fee simple land, when title was confirmed by the Land
Commission Award and title conveyed by the issuance of a Royal Patent. Reppun v. Board of
Water Supply (“Reppun”), 65 Haw. 531, 551; 656 P.2d 57, 71 (1982).
65. The “use of the water acquired as appurtenant rights may only be used in
connection with that particular parcel of land to which the right is appurtenant.” Reppun, 65
Haw. at 551, 656 P.2d at 71 (citing McBryde Sugar Co. v. Robinson, (“McBryde”) 54 Haw. 174,
504 P.2d 1330, aff’d upon rehearing, 55 Haw. 260, 517 P.2d 26 (1973)).
245
66. The amount of water accompanying the appurtenant right is determined by its use
on the property at the time of the Mahele. See Reppun, 65 Haw. at 551, 656 P.2d at 71.
67. When “the same parcel of land is being utilized to cultivate traditional products
by means approximating those utilized at the time of the Mahele, there is sufficient evidence to
give rise to a presumption that the amount of water diverted for such cultivation sufficiently
approximates the quantity of the appurtenant water rights to which that land is entitled.” Reppun,
65 Haw. at 554; 656 P.2d at 72.
68. Surface water rights are limited to the base flows. “(T)itle to water was reserved
to the State for the common good when parcels of land were allotted to the awardee under the
mahele. Thus ‘storm and freshet’ water is the property of the State.” McBryde, 54 Haw. at 199-
200, 504 P.2d at 1345.
69. The use of stream water where the mode of irrigation approximates that which has
historically been utilized for the cultivation of taro, although the method may not necessarily be
the most efficient means of irrigation, is not unreasonable as a matter of law where there is no
demonstration of unnecessary waste or proof that any more efficient means of cultivation is
available to them. Reppun, 65 Haw. at 553, 656 P.2d at 72.
70. Parties with appurtenant rights were harmed by the EMI Ditch diversions.
71. Water, up to the restoration of full stream flow, should be provided to satisfy
claimed appurtenant rights.
E. Noninstream Uses
1. HC&S
a. Agriculture
72. Article XI, § 3 of the Hawaʻi Constitution provides:
246
The State shall conserve and protect agricultural lands, promote
diversified agriculture, increase agricultural self-sufficiency and
assure the availability of agriculturally suitable lands. The
legislature shall provide standards and criteria to accomplish the
foregoing.
Lands identified by the State as important agricultural lands

needed to fulfill the purposes above shall not be reclassified by the
State or rezoned by its political subdivisions without meeting the
standards and criteria established by the legislature and approved
by a two-thirds vote of the body responsible for the reclassification
or rezoning action.
73. The people of Hawaii have a substantial interest in the health and sustainability of
agriculture as an industry in the State. “There is a compelling state interest in conserving the
State’s agricultural land resource base and assuring the long-term availability of agricultural
lands for agricultural use to achieve the purposes of:
1. Conserving and protecting agricultural lands;

2. Promoting diversified agriculture;
3. Increasing agricultural self-sufficiency; and
4. Assuring the availability of agriculturally suitable lands pursuant to article XI,
§ 3 of the Hawaii Constitution.”
HRS § 205-41.
74. The people of Maui County support agriculture for lands in central Maui as
indicated in the Maui Island General Plan and various community plans for several communities
in this area.
75. The conversion from sugarcane to diversified agriculture irrigation is similar to
the conversion that was taking place in leeward Oʻahu at the time of the Waiāhole Ditch
Contested Case. One of the differences is that in this Contested Case it is the Commission’s
burden to provide evidence of “the present or potential uses of water for noninstream purposes,
including the economic impact of restricting such uses,” in its balancing of instream and
247
noninstream values. HRS § 174C-71(2)(D). Furthermore, in establishing IIFS, the standard of
proof for the Commission is less than for water-use permit applicants: “In requiring the
Commission to establish instream flow standards at an early planning stage, the Code
contemplates the designation of the standards based not only on scientifically proven facts, but
also on future predictions, generalized assumptions, and policy judgments,” supra, COL 18.
76. In Waiāhole, the Commission on remand from Waiāhole I clarified the terms
“arable,” “cultivated,” and “planted” as follows:
Arable land is land that is able to be cultivated but not necessarily

in cultivation. Cultivated land goes through the cycle of being
plowed, planted, harvested, plowed under and left to rest (either
with or without cover crops), then plowed and planted, etc. Planted
means when the plants are actually present. So you may be planted
three or four months a year, but you’re in cultivation continuously
throughout the year. (CWRM, “Findings of Fact, Conclusions of
Law, and Decision and Order, In re Water Use Permit
Applications: On First Remand (“D&O II”),” at 74, December 28,
2001.)
77. In Waiāhole II, the Hawai‘i Supreme Court responded as follows:
It is the Water Commission’s daunting task to synthesize the
evidence and reach a conclusion while balancing various interests
and accounting for the public trust. In the instant case, the Water
Commission considered testimony that each planted acre,
depending on the crop, require(s) anywhere between 1,800 to
54,000 gallons of water per day, and averaging 7,500 gallons per
day. In diversified agriculture, farmers plant only one-third to one-
half of their cultivated acres at any given time. In addition, because
rotating the fields in diversified agriculture makes it difficult to
specify the water need for a particular acre, the Water Commission
decided to consider average water use for cultivated acres. Based
on the evidence presented, the Water Commission concluded that
2,500 gallons of water per cultivated acre per day was sufficient
for diversified agriculture. Inasmuch as the Water Commission
articulated its reasoning with sufficient clarity in its D&O II, we
cannot say that the Water Commission’s decision was clearly
erroneous. The Water Commission’s allocation off 22,500 gallons
of water per cultivated acre per day appears to be based on the best
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information currently available. Waiāhole II, 105 Hawaiʻi at 22, 93
P.3d at 664.)
78. In this Contested Case, the Commission has evaluated the best information
currently available from HC&S and articulated its reasoning with sufficient clarity to meet the
standard articulated in Waiāhole II. Moreover, in establishing IIFS, the standard of proof for the
Commission is less than for water-use permit applicants, supra, COL 107.
79. At the reopened hearing, although HC&S was only diverting 20 mgd for its own
use and for use by the County, the planned future uses set forth in the Diversified Agricultural
Plan is consistent with the use of lands under an IAL designation as well as article XI, § 3 of the
Hawaiʻi Constitution.
b. System losses
80. This decision anticipates that not all of HC&S’ projected irrigation water needs
under its Diversified Agricultural Plan will be met based on the median base flow from the
petitioned streams that can continue to be diverted.
81. It will be HC&S’ responsibility to allocate the water it may get under a lease from
the Board of Land and Natural Resources between irrigation water and system losses. The
Commission encourages HC&S to seek to make its storage and delivery of water to its fields
more efficient to increase the productive yield of the irrigation water from East Maui.
c. Alternative sources
i. Ground water
82. A&B has correlative rights to the brackish water underlying its lands, but it does
not own the water, which is a public trust resource, as is the surface waters that are diverted by
the EMI Ditch system. (COL 30.)
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83. Considering whether alternative water sources are practicable innately requires
prioritizing among public trust resources. (COL 27-29.)
84. Both surface and brackish groundwater are nonpotable public trust resources
available for nonpotable use—agriculture.
85. There are no absolute priorities among trust purposes, and resource protection is
not a “categorical imperative.” Reason and necessity dictate that the public trust may have to
accommodate offstream diversions inconsistent with the mandate of protection, to the
unavoidable impairment of public instream uses and values. (Waiāhole I, 94 Hawaiʻi at 141-42,
9 P.3d at 453-54.)
86. Brackish ground-water usable pump capacity is 115 mgd to 120 mgd, limited by a
likely increase in aquifer salinity levels, especially in the summer months when pumping would
be at its highest.
87. Historically, pumped groundwater constituted between 20 to 30 percent of total
use when HC&S was cultivating sugarcane. The sustainable level of groundwater usage will be
significantly reduced from historic levels in the the implementation of the Diversified
Agricultural Plan as a result of reduced recharge of the groundwater aquifer due to lower levels
of irrigation of overlying lands from diverted east Maui streams, the uncertain tolerance of
diversified agricultural crops to brackish water, and the higher costs of pumping groundwater.
ii. Additional reservoirs
88. An additional large reservoir is not a reasonably practicable alternative to meet
HC&S’ needs. A large reservoir would be: cost prohibitive; cause safety concerns to
surrounding communities; potentially result in significant impacts to the surrounding
environment; and be of limited value to HC&S during the dry summer months when it would be
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needed the most because of low-flow conditions because it is more efficient to apply ditch water
directly to fields to minimize system losses.
89. Although HC&S did not study the alternative of building a larger number of
smaller reservoirs, building more small reservoirs is not a reasonable alternative because it would
not have the same benefit as having a larger reservoir at the highest elevation, which would be
the eastward end of the agricultural lands.
iii. Recycled wastewater
90. Neither the ATA Report nor the Verification Study support the use of recycled
wastewater as an alternative to EMI Ditch water. Both studies only considered the use of
recycled wastewater for use on HC&S’ Nā Wai ʻEhā fields. It would be too costly and difficult
for the County and HC&S to design and construct a system to transport reclaimed water to the
East Maui fields most impacted by the reduction in water from East Maui more analysis is
needed to determine if this is viable.
iv. Maui Land and Pine
91. It is not reasonable to remove the water being pumped into the EMI Ditch by
Maui Land and Pine from the amount needed by HC&S for its use. EMI was only conveying the
water pumped into the EMI Ditch by Maui Land and Pine. No water was being diverted by EMI
for use by Maui Land and Pine. Because EMI has not been using the pump and has no intent to
use it in the future, no deduction is required to account for less water being needed to be diverted
by EMI.
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2. Maui Department of Water Supply (MDWS)
a. Municipal use
92. MDWS provides two types of surface water to its users: 1) potable water from its
Olinda, Piiholo, and Kamole WTPs, with a combined capacity of 13 mgd and an average daily
production of 7.7 mgd; and 2) non-potable water from HC&S’s Hamakua Ditch at Reservoir 40
for the Kula Agricultural Park, with two reservoirs with a total capacity of 5.4 million gallons
and average daily use of 3.5 mgd. (FOF 90, 92-93, 96, 98, 102.)
93. Current unmet demand is approximately 3.75 mgd, and by 2030, there is a
predicted additional need for 1.65 mgd. MDWS anticipates it will need to develop between 4.2
mgd and 7.95 mgd to meet demands through 2030. (FOF 437, 439-440.)
94. MDWS is a purveyor of domestic water uses of the general public, particularly
drinking. In this capacity, MDWS serves one of the purposes of the public trust, supra, COL 46.
95. “Domestic use” as defined in the Code is distinct from “domestic uses of the
general public.” In the Code, “ʻ(d)omestic use’ means any use of water for individual personal
needs and for household purposes such as drinking, bathing, heating, cooking, noncommercial
gardening, and sanitation (emphasis added).” (HRS § 174C-3.) The purpose of this definition in
the Code is to exempt individual users from the permit provisions of the Code: “(N)o permit
shall be required for domestic consumption of water by individual users...” (HRS § 174C-48 (a).)
On the other hand, “domestic uses of the general public” acknowledges “the general public’s
need for water,” and “the public trust applies with equal impact upon the control of drinking
water reserves (quotation marks in original deleted).” Waiāhole I, 94 Hawaiʻi at 136-138; 9 P.3d
at 448-450.
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96. MDWS is also a non-riparian diverter of East Maui stream waters, and under the
common law, its continuing use of stream waters is permissible if the use is reasonable and
beneficial and will not actually harm the established rights of others.
97. The Public Trust Doctrine applies in all situations, whether or not in a water
management area, and whether or not the common law applies. Waiāhole I, 94 Hawaiʻi at 133, 9
P.3d at 445.
98. For MDWS’s use of East Maui stream waters, there is a potential conflict between
the public trust doctrine and the common law. Under the public trust doctrine, there is a
presumption in favor of trust purposes, and competing water uses must be weighed on a case-by-
case basis. Under the common law, MDWS’s use must not actually harm the established rights
of others. While some appurtenant and riparian rights holders are also likely to have traditional
and customary Hawaiian rights in their exercise of appurtenant rights and also have a
presumption in their favor, they do not have priority over MDWS as a purveyor of domestic
water uses of the general public, and competing uses must still be weighed on a case-by-case
basis according to any appropriate standards provided by law.
b. System losses
99. The 1.1-mile Upper Waikamoi Flume, which serves the Olinda WTP, was
estimated to lose as much as 40 percent of total flow through cracks and holes along its whole
length. Actual losses could not be measured, because MDWS had no mechanism for quantifying
water levels at either the intake or discharge sites of the flume. If reliable capacity of the Olinda
WTP is the reported 1.6 mgd, then the flume could have lost as much as 0.64 mgd (1.6 mgd x
0.40) at that level of operation. (FOF 441-444.)
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100. MDWS has just completed replacing the entire flume, as well as completely
relining the two 15 million-gallon Waikamoi reservoirs and the 2 million-gallon on-site basin at
the Olinda WTP. (FOF 445, 448.)
101. With the new flume, MDWS will be able to calculate how much water is coming
from the flume on days when the main intake from the dam is dry, which is most of the days.
(FOF 446.)
c. Alternative sources
102. New reservoirs, which would be fed by streams in times of water surplus for use
during times of low flows, are not alternatives to using stream waters but a means of mitigating
the impacts of reduced availability of stream waters. Reservoirs mitigate fluctuations in both
stream flow and consumer demand, and mitigations in fluctuations in stream flow allow more of
it to be used at the proper time. (FOF 450, 452.)
103. New production wells are not an alternative to serve the Upcountry areas in the
immediate and intermediate future. Water is heavy, so moving it to higher elevations such as
where much of the Upcountry System is located, at 1000 to 4000 feet, from basal aquifers at sea
level is projected to cost $1.64 per thousand gallons for distribution from the Kamole-Weir
WTP, $4.07 per thousand gallons at the Piiholo WTP, and $593 per thousand gallons at the
Olinda WTP. MDWS’s current charges for water only average about $4 per thousand gallons, so
just the electrical costs to pump the water is more than what MDWS charges overall for its entire
operation. On top of pumping costs, there would be substantial initial capital expenditures and
on-going maintenance. (FOF 449.)
104. MDWS has also entered into a Consent Decree, which requires that MDWS
conduct vigorous cost/benefit analyses of other water source options before developing ground
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water in the East Maui region, and has tried unsuccessfully on several occasions to work within
the framework of the consent decree to develop new ground water sources. (FOF 449.)
3. Economic Impact
a. HC&S
105. The County of Maui has expressed that it “is in strong support of keeping the
lands used by HC&S/A&B in agriculture.” The County’s position “is largely premised on the
policies set forth in Maui Island Plan/General Plan 2030, the Countywide Policy Plan, and the
various Community Plans, which promote a variety of interests including economic diversity,
maintenance of view planes, open space and fire protection.” (MDWS Opening Brief at 5;
MDWS Rebuttal Brief at 6; Exhibit B-063, pp. 7-2 to 7-10; Exhibit B-064, pp. 46, 60, 61, and
75.)
106. MTF supports commercial agriculture in Central Maui. (Albert Perez, Tr., 2/8/17,
p. 435, ll. 13-14, p. 437, ll. 1-11.) MTF’s report, Malama Aina: A Conversation About Maui’s
Farming Future notes that “[t]he closure of the HC&S sugarcane enterprise is an opening to the
next generaltion of diversified farm businesses,” and that HC&S’s “large, consolidated 35,000-
acre block of central Maui farmland can be used to generate multiple income streams while
growing food and fuel profitably for local consumption and value-added export.” (Exhibit E-160,
preface and p. 1.)
107. MTF supports the use of East Maui stream water for “true agriculture.”
108. Nā Moku agrees that the former sugar lands should be kept in agriculture.
109. Accordingly, the parties to this contested case do not dispute that keeping
HC&S’s former sugar lands in agriculture is in the public’s best interest.
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110. Keeping HC&S’s former sugar lands in agriculture would promote the
Countywide Policy Plan’s core principle of maintaining open space and protecting scenic views.
(Kathleen Ross Aoki, WDT 10/17/16, ¶ 6.)
111. 22,254 acres of land irrigated with EMI water are designated as Important
Agricultural Lands (“IAL”) pursuant to HRS Chapter 205, Part III. The IAL designation “is a
commitment to keep these lands in productive agriculture over the long term.” (Volner WDT
10/17/16, ¶ 12.)
112. Keeping the East Maui fields in agriculture is important to the long-term
sustainability of Maui; and a diversified agricultural industry contributes to greater economic,
food, and energy security and prosperity and protects open space and working agricultural
landscapes.
113. In this early stage of transforming from sugarcane to diversified agriculture
cultivation on A&B’s East Maui fields, the forecasted water requirements continue to evolve and
will not become final until every acre has been planted back in another agricultural use.
114. Diversified agricultural uses will also be subject to change, because some
potential partners and lessees are expected to rotate multiple crops that could potentially have
different crop coefficients. And it is unknown whether every single one of these diversified
agricultural uses will come to fruition because so many basic questions about the company’s
potential agricultural operations remain unanswered.
115. The estimated water requirements will change not only because some potential
partners and lessees are expected to rotate multiple crops that could potentially have different
crop coefficients but also because water requirements could change significantly through the use
of regenerative agricultural methods.

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116. Finally, the acreage estimated to need irrigation—26,996 acres—is bound to
shrink in the future from Maui’s urban growth. The designation of “Important Agricultural
Lands” is a commitment to keep these lands in productive agriculture over the long term, and
22,254 acres are so designated.
117. Thus, it is not improbable that diversified agriculture will be maintained over the
long term on these acres although likely not on all the acres currently estimated to be in
diversified agriculture.
118. The maintenance of diversified agriculture on the central Maui agricultural lands,
including those designated as IAL, will require a consistent, reliable, and affordable source of
water.
119. It can be expected that well water, because of the cost to pump the water and the
unknown amount of sustainable level of groundwater usage, will not provide all of the water
needed to maintain diversified agriculture in the East Maui Fields.
120. In order for the East Maui Fields to successfully remain in agriculture, a portion
of the water needs under the Diversified Agricultural Plan must come from surface water.
b. MDWS
121. Under the MOU between EMI and MDWS, MDWS can receive 12 mgd with an
option for an additional 4 mgd, for a total of 16 mgd. During low-flow periods when ditch flows
are greater than 16.4 mgd, both will receive a minimum allotment of 8.2 mgd. If these minimum
amounts cannot be delivered, both will receive prorated shares of the water that is available. In
recent periods of low Wailoa Ditch flow, EMI has not restricted the allotment of water to
MDWS according to the terms of the agreement, and MDWS withdrawals have been limited
only by the amounts of water available in the ditch and the physical limitations of the existing
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Kamole-Weir WTP intake structures. During drought conditions, MDWS may withdraw 6 mgd,
and what remains is used by HC&S for irrigation.
122. There would be little or no impact if Wailoa Ditch flows were reduced by 15 mgd.
MDWS would not have full access to the 6 mgd capacity of the Kamole-Weir WTP for 5 days,
the same as for the period 2001 to 2011, and less than the maximum of 16 days for the period
1922 to 1987.
123. With a 20 mgd reduction in Wailoa Ditch flow and assuming a daily drought
period withdrawal of 5.0 mgd, there would not be sufficient water to provide reliable drought
period capacity without some mitigating actions. The deficiency only means that 5 mgd could
not be withdrawn. Lesser amounts could still be withdrawn from the Wailoa Ditch. Furthermore,
while the study defined drought period deficiency as being less than 4.6 mgd of a total capacity
of 6 mgd, actual use from the Kamole-Weir WTP has been 3.6 mgd out of the total capacity of 6
mgd.
124. With the addition of a 100-million gallon reservoir at the Kamole-Weir WTP, the
drought period reliable yield with the 20 mgd reduction in Wailoa Ditch flow would be 4.6 mgd,
approximately equal to the existing WTP reliable yield without reductions in ditch flows.
125. With a 200-million gallon reservoir, the drought period reliable yield with the 20
mgd reduction in Wailoa Ditch flow increases to 7.1 mgd, an increase of 2.4 mgd compared to a
100-million gallon reservoir and greater than the total capacity of 6 mgd of the Kamole-Weir
WTP.
126. Estimated costs of a 100- to 200-million reservoir at the Kamole-Weir WTP are
$25.25 million, and life-cycle costs over 25 years are estimated at $33 per thousand gallons or
$250 million.
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F. Balance of Instream v. Noninstream Uses
127. In setting interim instream flow standards, the Commission is required to weigh
the importance of the present or potential instream values with the importance of the present or
potential uses of water for noninstream purposes, including the economic impact of restricting
such uses. HRS § 174C-71(2)(D).
128. In setting these interim instream flow standards the Commission prioritized the
instream uses that allowed the stream species to flourish, traditional and customary native
Hawaiian rights, both appurtenant and gathering rights, to be actively practiced, and non-
municipal domestic uses to be supported.
129. The Commission also recognized that there are streams for which restoration of
flow would not result in significant biological or ecological gains and that the water may be
better used for noninstream uses. For those streams, a connectivity flow to allow for movement
of instream biota, would be sufficient.
130. The Commission also recognized that there is significant value in the noninstream
uses which include municipal use, which includes domestic use, and agricultural use. The value
of the noninstream uses goes beyond mere economic value to the users, it supports uses that
range from households, schools and hospitals to small truck farms and large agricultural
concerns. It also ensures the continued presence of agriculture in central Maui, a value which
has been incorporated by the community through its inclusion in the Maui Island Plan/General
Plan 2030, the Countywide Policy Plan, and the various Community Plans.
1. Water for streams with high biological value
131. Some of the Petitioned streams have the potential to benefit greatly from the
restoration of flow to a minimum H90 level based on the biological diversity and habitat that
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already exists under diverted conditions. These streams should be restored to allow the stream
species to flourish and reproduce, benefitting not only the natural environment but also allowing
for better opportunity for the exercise of traditional and customary native Hawaiian rights.
132. The streams that would most benefit from having IIFS set at H90 or above are:
a. Piʻinaʻau –potential to sustain a large and diverse population of native stream
species if flow is restored to the stream;
b. Wailuanui – flow restoration would likely increase habitat availability for the
rich diversity of native species represented in the stream while also creating connectivity and
suitable depths for native species in the currently dry or shallow sections dewatered by the
diversions;
c. Honomanū – despite limited available habitat quite a few native stream
animals are present in the stream. Flow restoration would likely improve the diversity in the
streamand improve ecological function of the estuary;
d. Waikamoi - habitat restoration would be benefitted by flow restoration.
Although Waikamoi has been found to maintain 50 to 75 percent of habitat under diverted
conditions, the presence of terminal waterfalls limits the species that are able to migrate
upstream.
e. Nuaʻailua – little flow restoration would be needed to achieve full habitat
availability, even under diverted conditions.
f. East Wailuaiki – because of the diversity of native stream animals and the
apparent health of the stream, flow restoration has the potential to sustain larger populations of
native stream animals with little restoration required.
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g. Kopiliula – since Kopiliula Stream already has a diversity of native stream
animals under diverted conditions, it has the potential to carry a full complement of native stream
fauna if allowed continuous mauka to makai flows.
h. Waiohue – has a good diversity of native stream animals and groundwater
input below the diversion.
133. None of these streams have registered diversions declared for taro cultivation nor
is there taro cultivation known to occur on these streams.
134. Certain streams, because of the high biological value or other factors, should have
all flow restored to the stream. These streams include West Wailuaiki and Honomanū Streams.
135. West Wailuaiki Stream presents a unique research opportunity to collect valuable
information regarding the impact of full restoration of a stream versus habitat restoration (H90).
East and West Wailuaiki lie in close proximity to each other with similar biological values and
similar habitat and biota. The Commission intends for these two streams to be studied in the
future in combination with one another to see the impact, if any, of full restoration versus habitat
restoration.
136. Honomanū Stream is a gaining stream from above the Lower Kula ditch to
Spreckles Ditch. Below the Spreckles Ditch it becomes a losing stream most likely as a result of
the diversion. Despite having several diversions on it, Honomanū Stream has a high biological
rating with a potential for high natural habitat gains with the restoration of flow to the dry
reaches. The Lower Kula Ditch diversion provides water for the MDWS system that is used for
domestic and agricultural use. Honomanū Stream should have full streamflow restoration below
the Lower Kula Ditch. No out of watershed transfers will be allowed below the Lower Kula
Ditch.
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137. No out of watershed transfers means that water will not be diverted outside the
watershed under all circumstances, including during storm events.
2. Conveyance of water to kalo growing areas or for community use
138. The following streams will have all diversions ceased to allow for all water to
flow to the taro growing areas or for community and non-municipal domestic use: Honopou,
Huelo (Puolua), Hanehoi, Piʻinaʻau, Palauhulu, Waikamilo, Wailuanui, Ohia, Waianu, Kualani,
and Makapipi.
139. All diversions for these streams shall be modified so that no out of watershed
transfers will occur from these streams.
140. In requiring the release of all water from these streams for the use of appurtenant
rights users, the IIFS will be set at zero (0) below the taro loi complexes and the domestic use
diversions. The users will determine the amount of water that will remain in the stream or that
will be returned to the stream from the taro loi.
141. Similarly, the amount of water that each loi will be allowed to use will be
determined by the users. The users are encouraged to use the “spirit of mutual dependence” in
the use of water within the loi complexes and amongst users on the same stream.
142. The “spirit of mutual dependence is based on the following description in Reppun:
Perhaps the essential feature of the ancient water system

was that water was guaranteed to those natives who needed it,
provided they helped in the construction of the irrigation system.
Because agriculture was a matter of great importance to the
Hawaiians, they were, in general, willing to contribute their efforts
to the water system. The konohikis aimed to secure equal rights to
all makaainana and to avoid disputes. Beneficial use of water by
the makaainana were also essential to the continued delivery of
water. The natives were subject to compulsory maintenance work
on the auwais under the supervision of the konohiki. The
konohiki, on the other hand, was reluctant to impose unreasonable
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burdens on the tenants because they were normally free to leave a
particular plot if unhappy with the konohiki. Hence a “spirit of
mutual dependence and helpfulness prevailed, alike among the
high and low, with respect to the use of water.”
Reppun, 65 Haw. at 540, 656 P.2d at 64.
143. The “spirit of mutual dependence,” as discussed in Reppun, recognizes the
importance of water and agriculture to the lives of the king, the konohiki, and the tenants of the
land, and encourages the cooperation of all members in the use and application of water.
Reppun, 65 Haw. at 540, 656 P.2d at 64.
144. The Commission’s intent is to not regulate, at this time, where and how much
water will be used for traditional kalo agriculture or how the water will be apportioned amongst
the kalo loi. Our decision provides an opportunity to refine our knowledge of kalo water
requirements as well as corresponding relationships with habitat status. It also provides time and
flexibility for the leadership within the affected local communities to develop community-based
allocation and management processes for the appropriate use of water from the kalo streams.
145. This approach does not automatically set precedents for other areas, but provides
a model of water use that integrates traditional culture with modern natural resource
management. In this model, there is a responsibility to sustain the native fauna that live in that
stream as well as to provide for other traditional and cultural gathering activities
3. Water for streams that have barriers to biological or ecological

improvements
146. The streams that are set at connectivity flow are:
a. Kapaula – a gaining stream that is diverted once at Koʻolau Ditch. There is a
poor diversity of native stream animals, likely in part due to the terminal waterfall at the end
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of the stream. The biological rating is low. Increasing streamflow is not anticipated to
enhance overall productivity of the stream.
b. Paʻakea – a gaining stream that is diverted once at the Koʻolau Ditch. The
lower reach of the stream has good streamflow, most likely from spring input. Most of the
native stream animals were observed in the first plunge pool and lower reach leading to the
ocean. While flow restoration may increase flow connectivity, it is not likely to enhance
overall productivity of the stream or any substantial increase to estuarine habitat.
c. Pua‘aka‘a – a tributary of a Kopiliula Stream with one diversion at the
Koʻolau Ditch. The stream habitat availability model predicts that the stream already
maintains over 50 percent of the natural habitat under diverted conditions.
d. Puohakamoa – is a one of the sources of water for MDWS’ system which has
a dry and losing reach in the headwaters but is generally a gaining stream. The biological
value is moderate with very little native species.
e. Haʻipuaʻena – there are five diversions of which 2 are for the MDWS system.
It is generally a gaining stream which had 50 percent to 75 percent of the natural habitat for all
species below Wailoa Ditch under diverted conditions. The terminal waterfall limits access
by certain native species which, in part, warrants a moderate biological rating.
f. Nuaʻailua – mostly a gaining stream which is only diverted at Spreckles
Ditch. Diverted base flow is about 90 percent of the natural base flow conditions which would
provide close to 100 percent of natural habitat for species.
g. Waiaaka – there is a single diversion of the stream at the Koolau Ditch. There
is very little habitat above the ditch with most of the hydrologic unit below the ditch. The
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stream provides 100 percent of the expected natural habitat availability even under diverted
conditions.
h. Hanawī – there is a single diversion at the Koolau Ditch. This is a gaining
stream mostly as a result of ground water gains from spring input below the diversion.
Hanawī provides excellent instream habitats and a diversity of native stream animals exist in
the stream. Little benefit would be achieved from the release of more water past the
diversion.
147. None of these streams have registered diversions declared for taro cultivation nor
is there taro cultivation known to occur on these streams.
4. Noninstream use of water for municipal and agricultural uses
148. The Commission, in the context of a proceeding to set IIFS, does not have the
authority to determine how much water may be used for noninstream use by HC&S or MDWS.
That is under the authority of the Board of Land and Natural Resources (“Board”) pursuant to
HRS § 171-58, subject to the IIFS set by the Commission.
149. Recognizing that the noninstream uses, especially municipal use, are valued uses,
the Commission has set IIFS to allow for the MDWS to continue to divert water through its
Upper and Lower Kula pipelines.
150. In not requiring full restoration of all streams, the Commission has allowed for the
some streams to continue to be diverted so that the Board may continue to license the diversion
of water not needed to meet the IIFS from these streams for noninstream use. The available
water would also include freshets and stormwater which are not included in the calculation of the
IIFS.
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151. The ditch system remains a valuable asset that delivers noninstream public trust
benefits such as drinking water, as well as other reasonable and beneficial offstream uses. The
reduction in diversions does not by itself compromise the structural integrity of the ditch system
so long as it continues to be maintained as a single coordinated system. The Commission
considered factors that contribute to the operational capacity of the existing ditch system by
allowing some water diversions from streams in the higher elevation eastern portion of the
watershed.
152. While the Commission recognizes that the water that may be licensed by the
Board from the petitioned east Maui streams may not be sufficient to satisfy the full
implementation of the Diversified Agricultural Plan, it is expected that a sufficient amount of
noninstream water would be available to provide the initial phase of allowing the lands already
designated as important agricultural lands in central Maui to be developed for diversified
agriculture.
III. DECISION AND ORDER

a. This CCH was being held to establish IIFS and not to determine nor limit which
parties may use waters available after the IIFS are established. Legal conclusions made in this
proceeding pertaining to a particular party’s water rights, traditional and customary rights, water
use requirements, alternative water sources, and system losses are made without prejudice to the
rights of any party and the Commission to revisit these issues in any proceeding involving the
use of water from any of the East Maui streams that are the subject of this contested case
hearing. The burden of proof with respect to such issues will be upon the petitioner rather than
upon the Commission.
266
b. In considering a petition to adopt IIFS, the Commission must weigh the
importance of the present or potential instream values with the importance of the present or
potential uses of water for noninstream purposes, including the economic impact of restricting
such uses.
c. It is the Commission’s duty to establish IIFS that protect instream values to the
extent practicable and to protect the public interest.
d. The public interest includes not only protecting instream values but also
preserving agricultural lands and assuring adequate water supplies for Maui.
The Commission needs only to reasonably estimate instream and offstream demands, and
may base the IIFS not only on scientifically proven facts but also on future predictions,
generalized assumptions, and policy judgments.
e. The IIFS of the following streams are amended from their previous IIFS, at the
approximate locations specified, with final locations approved by the Commission, if necessary,
after implementation by Commission staff.
f. The streams restored to natural, undiverted base flows (“full restoration”)
represents all the water that was historically available to the communities along each specific
stream before the EMI Ditch system was built. If, under current climate, rainfall, and stream flow
conditions, such stream flows are insufficient to meet all irrigation and domestic uses, it is
incumbent upon such users to develop a system of reasonable sharing, including adequate stream
flows for resuscitation of stream life. These streams will have IIFS of zero (0), as explained
above.
267
g. The IIFS are the estimated 64% of median base flows (BFQ50), also known as
(H90) flows, for stream restoration, and the numbers are only estimates, to be eventually
confirmed by actual flows from which the H90 can be established.
h. The following chart shows the name of the stream, the restoration status, BFQ50,
amended IIFS (cfs), and IIFS location, if applicable, for each stream:
Stream Name Restoration BFQ50 at IIFS IIFS Location

Status IIFS (cfs)38 Value
(cfs)
Makapipi Full 1.3 n/a Above Hana Highway
Hanawī Connectivity 4.6 0.92 Below Hana Highway
Kapaula Connectivity 2.8 0.56 On diversion at Koolau Ditch
Waiaaka None 0.77 0.77 Above Hana Highway
Paʻakea Connectivity 0.9 0.18 At Hana Highway
Waiohue Full 5.0 n/a At Hana Highway
Pua‘aka‘a Connectivity 1.1 0.2 Above Hana Highway
Kopiliula H90 5.0 3.2 Below Hana Highway
East Wailuaiki H90 5.8 3.7 At Hana Highway
West Wailuaiki Full 6.0 n/a Above Hana Highway
Wailuanui Full 6.1 n/a At Hana Highway
ʻŌhi‘a/Waianu None 4.7 n/a None.
Waiokamilo Full 3.9 n/a Below diversion at Koolau Ditch
38
Based on Gingerich WDT, Table: Summary of Median Basee Flow and Potential
Habitat at Median Base Flow in Diverted Stream Reaches, Northeast Maui, Hawai‘i.
268
Palauhulu Full 11 n/a Above Hana Highway
Piʻinaʻau Full 14 n/a Above Hana Highway
Nuaʻailua Connectivity 0.28 2.2 To be determined
Honomanū H90 4.2 4.2 Above Hana Highway
Punalau/Kōlea H90 4.5 2.9 Above Hana Highway
Haʻipuaʻena Connectivity 4.9 1.36 Below Hana Highway
Puohokamoa Connectivity 8.4 1.1 Below Hana Highway
Wahinepe‘e None 0.9 0.9 Above Hana Highway
Waikamoi H90 6.7 3.8 Above Hana Highway
Hanehoi Full 2.54 n/a Upstream of Lowrie Ditch
Huelo (Puolua) Full 1.47 n/a Downstream of Haiku Ditch
Honopou Full 6.5 n/a Below Hana Highway
i. It is intended that diversion structures only need to be modified to the degree
necessary to accomplish the amended IIFS and to allow for passage of stream biota, if needed.
j. This Order does not require that every diversion on every tributary be removed or
modified, the Commission is only looking at modifications to main stem and major diversions to
accomplish the amended IIFS set forth above. The Commission also recognizes that it is not the
purpose of this proceeding to determine how the diversions will be modified. That issue will be
before the Commission in a subsequent process.
k. The intent of the Commission is to allow for the continued use and viability of the
EMI Ditch system and will not require the complete removal of diversions unless necessary to
achieve the IIFS.

269
l. Monitoring of the IIFS will be through 12-month moving averages. This method
recognizes that requiring a specific amount of flow at all times at a specific location is
incompatible with the objectives of providing sufficient flow to meet irrigation and domestic
requirements and/or providing sufficient habitat for growth, reproduction, and recruitment of
native stream animals.
m. Approximately one year from the date of this Order the staff and parties shall
provide a status update on the implementation of the amended IIFS.
n. The Commission has no authority over DAR and therefore requests that the Board
authorize DAR to monitor whether or not the flows implemented for East Wailuaiki of H90 and
full restoration of West Wailuaiki have resulted in any difference in the biology or ecology of
these two streams as compared to the other.
o. Nā Moku shall report on:
1. The inflow quantity and outflow quantity of water from the taro loi complexes
and the flow of water remaining in the taro streams; and
2. Nā Moku members as “konohiki” for the streams that they use for irrigation
and/or domestic uses, including managing their uses so that the downstream
IIFS for habitat restoration are met.
p. EMI shall report on:
1. Modifications to diversions to meet the amended IIFS.
2. Water deliveries at Honopou Stream and Maliko Gulch, and any changes EMI
ascribes to the amended IIFS.
3. Changes in stream diversions and ditch settings as HC&S’s irrigation

requirements increase.
q. HC&S shall report on:
1. Surface, pumped, and total water usage.
2. Crops and acreage planted.

270
COMMISSION ON WATER RESOURCE MANAGEMENT
STATE OF HAWAII
PETITION TO AMEND INTERIM ) Case No. CCH-MA13-01

INSTREAM FLOW STANDARDS FOR )
HONOPOU, HUELO (PUOLUA), ) CERTIFICATE OF SERVICE
HANEHOI, WAIKAMOI, ALO, )
WAHINEPEE, PUOHOKAMOA, )
HAIPUAENA, PUNALAU/KOLEA, )
HONOMANU, NUAAILUA, PIINAAU, )
PALAUHULU, OHIA (WAIANU), )
WAIOKAMILO, KUALANI, WAILUANUI, )
WEST WAILUAIKI, EAST WAILUAIKI, )
KOPILIULA, PUAKAA, WAIOHUE, )
PAAKEA, WAIAAKA, KAPAULA, )
HANAWI, AND MAKIPIPI STREAMS )
)
CERTIFICATE OF SERVICE
On June 20, 2018 , a copy of the foregoing document was served on:
ALAN T. MURAKAMI, ESQ. PATRICK WONG, ESQ.

CAMILLE K. KALAMA, ESQ. CALEB ROWE, ESQ.
SUMMER L. SYLVA, ESQ. KRISTIN TARNSTROM, ESQ.
Native Hawaiian Legal Corporation Dept. of the Corporation Counsel
1164 Bishop Street, Suite 1205 County of Maui
Honolulu, Hawaii 96813 200 S. High Street
Attorneys for Nā Moku Aupuni O Ko‘olau Wailuku, Hawai’i 96793
Hui Attorneys for County of Maui, Department
of Water Supply
DAVID SCHULMEISTER, ESQ.
ELIJAH YIP, ESQ. ROBERT H. THOMAS, ESQ.
Cades Schutte LLP Damon Key Leong Kupchak Hastert
1000 Bishop Street, Suite 1200 1600 Pauahi Tower
Honolulu, Hawai’i 96813 1003 Bishop Street
Attorneys for Alexander & Baldwin, Inc. Honolulu, Hawai’i 96813
and East Maui Irrigation Company, Ltd. Attorney for Hawai’i Farm Bureau
Federation
ISAAC HALL, ESQ. Copies, as necessary:
2087 Wells Street
Wailuku, Hawai’i 96793 JOHN BLUMER-BUELL
Attorney for Maui Tomorrow P.O. Box 787
Hana, Hawaii 96713
Jeffrey C. Paisner Witness
121 North 5th Street - apt. RH
Brooklyn, New York 11249 NIKHILANANDA
Pro Se P.O. Box 1704
Makawao, Hawaii 96768-1704
WILLIAM J. WYNHOFF, ESQ. Witness
LINDA L.W. CHOW, ESQ.
Department of the Attorney General
465 South King Street, Room 300
Honolulu, Hawaii 96813 /s/ Kathy Yoda
KATHY YODA
Attorneys for the Tribunal
Commission on Water Resource Management

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TABLE OF CONTENTS

EXECUTIVE SUMMARY ........................................................................................................... i

East Maui Forests and Streams

“Hahai no ka ua i ka ululāʻau” – Rains always follow the forest

Decision Making Rationale and Process

East Maui Irrigation Ditch system

Future Allocation and Water Use Recommendations

Striking a Better Balance

The Commission on Water Resource Management (“Commission”) makes the following

Waikamoi, Alo, Wahinepe‘e, Puohokamoa, Haʻipuaʻena, Punalau/Kōlea, Honomanū, Nuaʻailua,

considered a COL, then it should be treated as a COL.

not substantially alter the meaning of the original findings.

Wailuanui (6056) contains Wailuanui Stream.3 (Exh. C-85, pp. 1-2.)

5. On May 29, 2008, NHLC filed a complaint on behalf of Nā Moku, Beatrice

0000161, August 20, 2014, p. 2.)

6. On August 18, 2008, HC&S filed a Motion to Consolidate Petitions to Amend

September 24, 2008. (Exh. C-88; Exh. C-89, pp. 3-9.)

September 25, 2008 Decision

7. On September 24, 2008, the Commission staff recommended amendment of the

8. On September 25, 2008, the Commission accepted staff’s recommendations

9. In accepting staff’s recommendation, the Commission added the following three

1) Moving forward on the staff’s recommendation is the first step in (an)

2) Staff shall provide progress reports to the Commission at regularly

(Exh. C-89, pp. 30-31.)

May 25, 2010 Decision

10. On December 16-17, 2009, the Commission met to consider staff’s

wet versus dry seasons. (Exhs. C-90, C-106.)

1.11 mgd. (Exh. C-91, pp. 47-52.)

(Exh. C-91, p. 50.)

Puohokamoa, Haʻipuaʻena, Punalau/Kōlea, Honomanū, West Wailuaiki, East Wailuaiki,

§ 7-1 and protected under HRS § 174-101.” (Exhs. C-92, p. 3.)

hearing, October 18, 2010, p. 4, table 1.)

supply.” (Application to be a Party in a Contested Case Hearing Before the Commission on

Water Resource Management, June 3, 2010, p. 2.)

Nā Moku and the County of Maui. (Exh. C-93, pp. 3-5.)

Haʻipuaʻena, Punalau/Kōlea, Honomanū, West Wailuaiki, East Wailuaiki, Kopiliula , Pua‘aka‘a,

CAAP-10-0000161, November 30, 2012, pp. 2-3.)

decision accompanied by findings of fact and conclusions of law. We consequently decline Nā

empowered to make this determination.” (Id., pp. 7-8.)

a. On March 4, 2014, a prehearing conference was held to establish

b. on April 21, 2014, Nā Moku, MDWS, Alexander & Baldwin, Inc./EMI

Transcript of due process hearing, June 30, 2014.)

contested case, because:

d. the Commission cannot evaluate the cumulative impact of existing and

(Transcript of due process hearing, June 30, 2013, pp. 28-41.)

Commission Meeting of August 20, 2014, pp. 9-10.)

Commission staff. (Minute Order # 13, January 7, 2015.)

the Hearings Officer.

Federation did not submit any FOF, COL, and D&O.

MTF on reopening, FOF 4, 107.]

on reopening, FOF 47.]

opened hearing include the following areas:

b. the impact of HC&S’s cessation of sugar operations on MDWS’s use of

d. how EMI is managing the decrease in diversions, how it would manage

(Minute Order # 19, April 1, 2016.) [HC&S on reopening, FOF 48.]

historically. [Nā Moku on reopening, FOF 6, 8.]

FOF 12; Nā Moku on reopening, FOF 10.]

6 to p. 540, l. 2.) [Nā Moku on reopening, FOF 11.]

reopening, FOF 18-20.]

D&O to the Commission and the Parties.