New water bureaucracy bad news for Maui housing

Maui’s water bureaucracy just got a lot more bureaucratic, and that could cause significant delays in homebuilding on the island.

The state Commission on Water Resource Management, the state agency that administers the State Water Code, in June designated West Maui as a surface water and groundwater management area after determining that water resources in the area were threatened.

The move effectively usurped the Maui Department of Water Supplys authority in the region, which covers areas such as Kaanapali, Lahaina, Napili and Kapalua.

Eva Blumenstein, the Maui department’s planning program manager, said the CWRM designation means the state will now control public and private withdrawals of water in West Maui, adding another layer of approvals for parties seeking to access the county’s water supplies.

Speaking on the Aug. 2, 2022, episode of “Hawaii Together” on ThinkTech Hawaii, Blumenstein told host Ted Kefalas of the Grassroot Institute of Hawaii that she didn’t think CWRM had enough staff to handle all the new work they were just handed. The practical effect is that “water purveyors” seeking access to water for municipal, agricultural or commercial reasons could be in for long waits before obtaining their permits.

Asked how the CWRM designation might affect average Maui residents, Blumenstein said it is unlikely their water service will be interrupted, although West Maui customers already are being asked to conserve water, and mandatory conservation measures are likely.

But for any “new source development,” such as for new affordable housing projects, there certainly will be delays, she said, “because all the existing users will have to be processed first. And on top of that, your permit application may be contested.”

If a water-use application is contested — and virtually all of them are, she said — the whole project will take more time and expense to complete, which is a big risk for homebuilders since the margins for affordable housing development already are “pretty thin.” 

To see the entire 30-minute interview, please click on the video below. A complete transcript is provided. To read Institute President Keli‘i Akina’s Aug. 6 commentary on the issue, go here.

8-2-22 Ted Kefalas with  Eva Blumenstein on “Hawaii Together”

Ted Kefalas: Aloha, and welcome to “Hawaii Together” on the ThinkTech Hawaii broadcast network. I’m Ted Kefalas, the director of strategic campaigns for the Grassroot Institute of Hawaii, and I’ll be standing in today for our regular host, Dr. Keli’i Akina.

Today’s topic is Maui’s new water bureaucracy. Our guest is Eva Blumenstein, planning program manager at the Maui County Water Department. Eva is here today to help us understand the new designation by the state to oversee the water on West Maui and how this might impact the local residents. 

Thank you for being with us today, Eva. We look forward to learning a lot about the water issue on Maui.

Eva Blumenstein: Aloha. Thanks for having me.

Kefalas: Now, before we get into talking about this, do you mind going into depth about your background and telling us how long you’ve worked for the Maui Water Department?

Blumenstein: Sure. My background is in environmental studies and law. Before I came to the water department, I worked briefly for a law firm that litigated groundwater contamination cases, and specifically pesticide contamination of wells in Maui. I’ve been with the department for over 20 years and in this capacity as a planning chief for the last seven years.

Kefalas: Oh, wow. so you’re certainly qualified to talk about this. You’ve mentioned that you work at the Maui County Water Department, but there’s a different and separate entity at the state level called the State Commission on Water Resource Management. Some people might know it as “C-worm” (CWRM). 

Could you tell us what the differences are between those two agencies? A lot of people think that because they deal with water, that you guys do a lot of the same things.

Blumenstein: Right. So CWRM is a state agency under the Department of Land and Natural Resources. And they administer and implement the State Water Code. They have very broad responsibilities, managing water resources throughout the state, as all waters in the state are held in trust for the benefit of our citizens. So all permits related to groundwater development or surface water diversions are administered by CWRM.

We, the Department of Water Supply, are a county agency. We manage and operate all water systems owned by the county, but we are also tasked by the county charter to protect and manage water resources in the county, especially identifying what water resources are available for current and future use. And we also have to implement a county’s land-use plan, such as the general plan and the community plans.

Kefalas: Sure. That’s certainly an important job. As we’ve seen in the news recently, CWRM. I believe. has recently designated West Maui as a surface water and groundwater management area, and I think a lot of people are confused about that and really what that means. So could you help us unpack that and understand what exactly that designation will mean?

Blumenstein: So the designation means that the state takes administrative control over all withdrawals of water in that area: public and private. So that should happen when CWRM determines that water resources in a specific area are threatened, and with the objective to ensure that there’s reasonable, beneficial use of the water resources in the public interest.

So the State Water Code defines specific criteria that must be met to designate, such as where the water quality is threatened, or water levels in aquifers are declining, or water used or projected to be used goes beyond 90% of the sustainable yield or the max sustainable rate that can be withdrawn from an aquifer. 

There may be serious disputes or excessive waste occurring, etc. So the surface water, the triggers are a bit different.

And once an area is designated, each water purveyor — whether that’s the municipal or agricultural or commercial — has to apply for a water-use permit for their existing use. And those permits are subject to different conditions and so forth in the State Water Code. 

And then permits for new uses, such as wells that are not yet in production, are considered after the existing uses in that area have been addressed.

So each permit application is subject to comments and objections by any person with a property interest or actually an interested person. And if there are no objections filed, then the commission — the appointed water commission — can proceed to approve or reject that water-use permit  application. 

And every water-use permit  application that the department has filed has been objected to by some party, and often there’s a petition for a contested case as well.

Kefalas: Oh, wow. That’s very interesting. You said every case has been contested?

Blumenstein: Every water-use permit application we have filed has been objected to.

Kefalas: Oh, wow. That’s very interesting. 

Now, talking about about the CWRM designation and applications, … how does this affect the average resident on Maui? Is there something that we’re going to see, as the average person, that’s going to see big change because West Maui has been designated as this surface water and groundwater management area?

Blumenstein: I guess it depends on, to some extent, where you’re getting your water from. So in CWRM’s opinion, now, the current withdrawals are already exceeding available supply, from at least two of these individual aquifers, groundwater systems. So certain uses may have to be reduced or find alternative supply. 

So when there’s competing needs and if there’s insufficient supply — domestic uses, or what is thought of like general household use, is one of the protected classes, the public trust use — so the average person will unlikely have their service interrupted. 

We are already asking West Maui customers to conserve water, and I would expect other private purveyors to do the same and probably issue mandatory conservation measures if there is insufficient supply for existing customers.

Kefalas: Absolutely. Now, with this new designation, does it make it any more difficult, or does it change how we find new sources of water? Obviously, water on Maui, in particular, is a very valuable resource.

Blumenstein: Well, for the Water Department, we have already budgeted and begun the development of new source in three of the aquifers in West Maui. It takes a long time to get from hydrologic study to site selection, landowner negotiations, engineering report, environmental assessment, state historic preservation district review, etc. etc. So designation adds another layer with an additional permit and analysis required, that is, what is a permit application, and what’s called a Ka Pa`akai Analysis analysis.

That goes in front of the commission and it requires that that use can be accommodated from the available resource. So, if we are now, in CWRM’s opinion, exceeding available supply already, it doesn’t seem likely that additional source can be accommodated, right? 

The other thing is the length of time for CWRM to approve water-use permits for all existing uses is problematic because permits for new wells are delayed until the existing wells have been processed, and there are at least, I think, it’s like 80 existing wells in West Maui, so maybe 60 or so of those are production wells that need to be processed. 

So I don’t think CWRM has the sufficient staff to deal with this enormous new management area for all the surface water and groundwater in West Maui on top of their responsibilities elsewhere.

Kefalas: Sure. And those 60 wells, how long does that typically take for them to process — I mean, you know, in previous years?

Blumenstein: So it depends. We are still waiting for our new water-use permit for the Iao water treatment facility that we submitted in 2009, for the Iao, in Na Wai Eha, in the Wailuku aquifer area. So it will be years, I’m sure.

Kefalas: Sure. Absolutely. I mentioned earlier that water is such a valuable resource, and I think you had touched on this a little bit in some of your responses, but is there technically enough water on West Maui to meet the needs of residents of the area today? And what are the area’s future needs as we look at the water situation, and what can we do to mitigate that?

Blumenstein: Well, so, yes. The Water Department didn’t really agree with CWRM’s determination that current and future water needs exceed supply in several of the aquifer systems. 

So we know actual 2021 groundwater withdrawals [are] maybe 25% of sustainable yield. Sustainable yield is 34 million gallons a day for that whole aquifer sector for the whole region. There’s definitely potential underreported wells, but I know that all the large purveyors support their water use.

So it’s important to understand that sustainable yield is not all the available groundwater. It’s a fraction thereof. So it’s a percentage of total recharge, and that depends then on the initial water level or head. 

So for West Maui, sustainable yield is generally 44% of recharge, meaning that the remaining 56% of groundwater flowing mauka to makai is allowed to reach nearshore waters. Then sustainable yield is also set at the lowest end of a calculated range.

For example, for the Launiupoko aquifer, that range is 7 [million] to 18 million gallons a day, but then sustainable yield is set at 7 at the lowest range. So there is sufficient aquifer yield within the region as a whole, that in combination with surface water and recycled water, could support planned housing, if allocated in a sustainable manner.

Kefalas: Sure. And the county — it seems like you guys already have a plan for this water development in Maui. 

Blumenstein: Well, we do.

Kefalas: So why is this state designation needed if at all? And, if you could, maybe go into some of the county’s plan that you guys have and how it differs from the state.

Blumenstein: Yeah, so how to allocate water resource to land use is required by the State Water Code to be determined in the water use and development plan. So that’s the plan. The county’s required to prepare this plan for all water resources within the county, whether they’re used by county or private systems.

So the plan allocates the most appropriate resource to future demand considering the county land-use plans, the community’s priorities, climate-changing impacts, legal constraints, etc. 

So future development, for example, will have non-potable irrigation needs. The plan says that should be primarily met with recycled water, not by potable groundwater. The plan may also prescribe that supply for new development should not be served by that underlying aquifer for groundwater.

For example, your household may not necessarily be served by the groundwaters underlying that neighborhood. You live in Honokowai, you’re served by our system, the county system, but your water in that case is actually coming from Launiupoko. So water supply for new housing development may have to come from an adjacent watershed or a mix of groundwater, surface water or recycled water.

So when CWRM made the determination that there isn’t sufficient yield in certain aquifers to support planned growth, they actually ignored this fact, and the resource distribution that is really a key strategy in the water-use and development plan — how to properly allocate water to land uses into planned growth. 

And this plan is a guidance document, yeag? So it doesn’t necessarily substitute designation where that is warranted, but the plan should guide that designation decision.

Kefalas: Absolutely.

Blumenstein: But the plan was adopted by County Council in February this year. At about that same time, CWRM fast-tracked designation before allowing that plan to be heard by the commission.

Kefalas: Sure. And like you said, if the county had a plan for thism what was the thinking behind CWRM jumping in, [getting] involved and almost stepping on the county’s toes in a sense. Why now? Why did they pick this recent time to get involved in this issue?

Blumenstein: I don’t have a good response to that. [laughs] As I mentioned before, we were definitely concerned with climate crisis, the changes in rainfall, decreased rainfall and recharge. I think that we still have the tools to address the different challenges we have, which is a bit different. There’s a preferred way of doing that.

Kefalas: Absolutely. Now, West Maui seems to have a lot of private companies that provide the water. Why are there so many private companies doing that there? And has that been working out in Maui or should they be looking at a different way of doing things?

Blumenstein: Yeah, so, many of these private water companies, they are like legacy systems from the plantation era. That was surface water or streams that were diverted by Pioneer Mill, who was growing sugar, and Maui Land & Pine, which was growing pineapple. And these former sugar and pineapple lands over time have been partially developed into what some folks think of as luxury agriculture subdivisions, and private companies are retaining the water systems.

So that has created long-standing conflicts where there’s insufficient water provided for surrounding uses, or not sufficient water allowed to remain in the stream for instream uses. 

In terms of water for households that are served by the private companies, these systems, they’re regulated by the Public Utilities Commission and they’re subject to the same drinking water standards, the county Safe Drinking Water Act, and whatnot. So they have to ensure they provide safe water to their customers.

So now, instream flow standards have been adopted for all but one of the diverted streams, I believe. So the private purveyors, just like the county, have to reduce stream diversions, and they have to make sure that they have enough groundwater as backups, especially in droughts when there’s no sufficient stream flow. And they now really have to implement more aggressive conservation measures, I think, than they used to in the past.

Kefalas: Sure. Absolutely. Now, a lot of talk has been made on the election side of things this year about housing and building more housing, getting rid of regulations. But does this CWRM designation affect the development of housing in West Maui at all? Are we potentially going to see less development out there, meaning less supply of houses for local residents?

Blumenstein: Well, so, as I mentioned before, in CWRM’s view, current users are exceeding available supply. Other factors are at risk because of decreased rainfall and recharge. So it doesn’t seem very likely there’s a lot of additional source that can be accommodated. But there’s certainly a delay for any new source development because all the existing users will have to be processed first. And then on top of that, your permit application may be contested, yeah?

For example, an affordable housing project proposed to develop a new water source to serve a project, and if your water use in that permit application is contested, then that whole project may be subject to a contested case hearing. So that could result in appeal, and add time and expense to the applicant. 

So I understand there’s pretty thin margins for at least affordable housing development. So it adds a barrier and an expense. But for the water department, it’s really not known if our new wells that are in the works will be permitted to pump as planned, or if we will have a moratorium issuing new meters in West Maui. We don’t know.

Kefalas: Sure. I believe you mentioned earlier that all of those permits pretty much are contested. So it sounds like that is definitely going to be part of the process almost, as opposed to just smooth sailing.

Now, you know, we talked a little bit about the differences between the Maui Department of Water Supply versus CWRM. But can you go into a little bit of depth about what you guys favored in terms of a different approach compared to CWRM? 

And if so, how that would be a better approach, at least in your mind, and how we can do this better than how CWRM has currently gone about the process?

Blumenstein: Sure. I don’t know that we can, but the Water Department, as well as the Maui County Planning Department and the mayor, favored a more collaborative approach. 

So we think the CWRM had an option to invite water users — like all water users — to assess the situation, and then together devise what measures we should take to ensure that we both develop new source in a sustainable fashion and that we use current supply in a responsible way.

So we do have the tools to do that. We have groundwater models and studies. We have instream flow standards adopted as guidance. So this is what we asked CWRM to do: to try that first. The department did commit to work with all the parties, with the commission staff, with the Department of Hawaiian Home Lands, private purveyors, community representatives, etc.

So together we would take action on the strategies that were adopted in the water-use and development plan already. Literally, it’s balancing the water budget to not strain an individual aquifer system or stream resource, to do that in a collaborative fashion rather than in a regulatory fashion. 

And together continue to invest in recycled water expansion, because that’s really a key component to doing this. We need really putting that at the forefront to get recycled water distributed to more plant development, to increase the water efficiency for all, for the private conveyors, as well as the county, and also to invest in watershed protection and watershed restoration, because that is ultimately the tool to address climate change and decrease in rainfall and whatnot.

So I mean yeah, we’re of course concerned over the same thing — the decreased rainfall and recharge — and there’s definitely ways where we and CWRM together could really incorporate these new continuously evolving climate models and updated recharge numbers. CWRM could really address that by updating their sustainable yield numbers, yeah?

So, if we understand now that if we can’t rely on adopting a sustainable yield, then what needs to happen is to correct those calculations, to address the climate crisis instead of putting that burden on the water conveyors through this designation process.

Kefalas: Certainly. And that all makes perfect sense, and we’re glad that you’re on the front lines fighting this.

We’re really wrapping up here on our show. And Eva, I wanted to give you an opportunity. Is there anything that you would like to add, something that we maybe haven’t talked about yet, or anything specifically that you would like for our viewers to walk away with after watching this interview?

Blumenstein: Well, we’re already designated, so we should have had this talk earlier. No, I think all purveyors will struggle to meet demand. But we are going to have to go through the process as it’s codified in the State Water Code. 

But I think there’s still opportunity for all the parties to work together on measures to benefit the broader West Maui community — not just looking at individual interest because we all benefit from responsible water use, improving — really upping — our conservation efforts to invest in watershed protection and restoration and water quality protection now, because, ultimately, we all depend on the same resource. 

So I really hope folks keep that in mind when we are in the midst of these permit objections and contested cases and appeals. Yeah? We ask ourselves, is this good for the public interest?

Kefalas: Absolutely. 

Blumenstein: That’s what I hope.

Kefalas: Definitely, definitely, and getting people involved in the process is a great thing and just getting more and more people to understand what exactly is happening in government. So Eva, we really appreciate you taking the time to speak with us today, and for all the important work that you do on Maui regarding our water. 

Of course, we wanted to thank the audience for joining us today on another episode of “Hawaii Together.” I’m Ted Kefalas, standing in for Dr. Keli’i Akina. Until next time, aloha.

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