Hundreds, if not thousands, of ‘o‘opu (goby) died in the Wailuku River last week in what’s been called a “substantial fish kill” by the state Department of Land and Natural Resources. The Interim Instream Flow Standard (IIFS) which dictates the share of water permitted to be taken from the river by private entities was suspended starting Oct. 28 to allow increased water diversions by the Wailuku Water Company and Mahi Pono, as requested by the DLNR Commission on Water Resource Management. Lower stream flow, CWRM said, was necessary in order to construct a ladder to support the ‘o‘opu, a culturally important, native freshwater fish that travels up- and downstream in its lifecycle.
The dried stream beds, however, resulted in the massive fish kill.
Buried beneath the shocking images in last week’s news was this curious bit of information, which reignited a bitter conflict over the stewardship of the Wailuku River: While the Department of Land and Natural Resources informed Mahi Pono and Wailuku Water Company that the ladder project was done by late Tuesday afternoon, Wailuku Water Company did not return water to the river at pre-suspension levels until Thursday.
“The installation was completed late Tuesday afternoon and both companies were notified,” said the DLNR in a Thursday, Oct. 31 statement. “Today CWRM officially notified both companies to reinstate the IIFS and return full regulated flow to the stream. Water was returned to the river by Mahi Pono on Wednesday morning and by the Wailuku Water Company earlier today [Thursday] at CWRM’s request.”
“While the Hui was not opposed to the fish ladder, we were not in support of the suspension of the IIFS, which is what caused this issue,” said Hokuao Pellegrino, the president of Hui O Na Wai ‘Eha, an organization which advocates for increased stream flow and mauka to makai river connectivity in the areas of Waikapu, Wailuku, Waiehu, and Waihe‘e. He also pointed to the delay in restoring the river water back to the pre-suspension levels: “[Wailuku Water Company] didn’t put the water back in until Thursday, which is really one of the reasons there was such a large fish kill off.”
To Pellegrino, the company’s slow-walking the return of water was evidence of yet another way WWC “plays games” to skirt the rules. He said a hydrologist from CWRM visited the Wailuku River on Tuesday, Nov. 5 and found that the stream flow below the WWC diversion intake was 8 million gallons per day (mgd) – that’s 2 mgd short of the flow standard of 10 mgd, Pellegrino told me, adding, “That means Wailuku Water Company is breaking the law.”
“They’ve been doing illegal things since the inception of their corporation,” he said. “I know the community’s pissed, but none of this stuff phases me. This is just what they do. This is what they’ve always done.”
Avery Chumbley, the president of Wailuku Water Company didn’t dispute CWRM’s measurement, but accused Pellegrino of “misrepresenting information to the larger community” and asserted that “what was in the stream below the intake was still in compliance.”
“Mr. Pellegrino doesn’t understand how the IIFS works,” Chumbley told me. “He’s misinformed and spreading misinformation to the larger community as he typically does.”
Chumbley said that the amount he’s allowed to divert is determined on a “sliding scale,” depending on the stream flow above the company’s diversion intake. If the stream flow is low, as can happen during dry periods, the IIFS is also lowered to allow the company to continue to divert sufficient water for its purposes.
According to the 2014 settlement agreement which includes WWC and Hui O Na Wai ‘Eha, Chumbley is correct on this point.
In order to provide the 3.2 and 0.2 mgd necessary to service the county’s water treatment plant and some kuleana users, WWC is permitted to divert “the greater of one-third of the stream flow or 3.9 mgd” when the daily stream flow above the diversion is between “15 mgd and 10 mgd and has continued in that range for three consecutive days… When the average flow for any day falls below 10 mgd, commencing the next day and continuing until the average daily flow returns to at least 10 mgd, 3.4 mgd may be diverted.”
In short, if the river above the intake is going dry, WWC is still permitted to take water, and is excused from having to return water to the river in order to meet the 10 mgd IIFS.
Where Pellegrino and Chumbley disagree regards the measurement of “average daily flow,” and thus how much water needs to be returned to the stream to comply with the IIFS.
“The numbers that we try to use are based on our historical knowledge of operating the system. There are no correctly functioning measurement gauges right now,” Chumbley said. When asked again how he determines the amount to return to the stream in order to meet the IIFS, Chumbley maintained, “I’m using historical data and knowledge of us operating the system for decades, and what we’re taking off the stream.”
Pellegrino disagreed. He acknowledged that more work needs to be done to implement stream gauges and monitor flow, especially below the diversion intake, but said, “A little more than a month ago, USGS [US Geological Survey] put in their real-time gauge above the diversion. So we know what’s flowing above.”
USGS makes the stream flow available online, and contrary to Chumbley’s statements of drought conditions, the measured daily stream flow for Tuesday, Nov. 4 (the day CWRM measured flow below the intake) was between 19 and 26 mgd – not enough to trigger the so-called “sliding scale” in the 2014 settlement agreement. And, in the week prior to Nov. 4, the daily stream flow was even higher.
Chumbley said that the USGS data is “incorrect and wrong,” adding “the constant shifting of rocks from even small flows is affecting the reading.”
Still, the 2014 settlement agreement that WWC entered into with Hui O Na Wai Eha decrees that the USGS stream measuring station collects the data which should be used to determine the daily stream flow.
“The USGS stream gauge provides real-time flow readings,” said DLNR water deputy Kaleo Manuel. “The graph also shows the median daily statistic based on 36 years of record, which is one way for us to monitor if the gauge is reading accurately.”
“With Avery and all, none of this stuff surprises me,” Pellegrino told me. “But what bothers us the most is the fact that our state regulators – who are supposed to enforce the law – are really crumbling, and have crumbled. I just don’t understand why they cannot enforce the law.”
Since the 2016 flood there have been no CWRM gauges in the river, he added. They do “spot checks,” Pellegrino said, “but let me put it this way: since 2016, probably less times than I can count on one hand.”
“The community’s at a breaking point,” he said. “What happened last week – that whole debacle with the fish ladder – is a sign that there really needs to be some leadership changes and DLNR needs to get its act together.”
“In general, we are trying our best to get the best stream and gauge data as possible, which is still a work in progress,” said DLNR water deputy Kaleo Manuel. “It’s going to take cooperation from all users, agencies, and community in making that possible.”
Pellegrino said closing arguments for the contested case regarding the waters of Na Wai ‘Eha will happen on Nov. 19 on Maui, and commissioners will stay for their general meeting on Nov. 20. He hopes that the Hui’s formal complaints regarding WWC will be taken up at the general meeting.
Images courtesy Hokuao Pellegrino