Kokee & Kekaha Ditch Systems

SUBHEAD: The diversion of water from its normal course from the Alakai Swamp through the Waimea River.

By Juan Wilson on 29 April 2015 for Island Breath -

Image above: View from Waimea Canyon Lookout. In the distance and to the upper left is the Alakai Swamp. In the forefront is Wahane Valley in the Puu Ka Pele Forest reserve. Much of the stream water in the lower valleys is diverted from flowing through the Waimea Canyon. The water is used to power the Mauka Hydroelectric Station before traveling on through the Kekaha Ditch System. Photo by Juan Wilson.

Yesterday, the 28th of April 2015, the Commission on Water Resource Management (CWRM) of the Hawaii Department of Land and Natural Resources (DLNR) met on Kauai for the first time. It was a long day for its members who were committed to several events from morning and into the night. These included planned  site visits to several locations on the Kokee and Kekaha Ditch Irrigation Systems.

I attended three events between 9:30am until 4:30pm. There was a gathering of interested parties and an orientation at the Waimea Neighborhood Center. Then there were site visits to seven points long the ditch systems to get an understanding of the systems.

The CWRM conducted a site visits to several locations on the Kokee and Kekaha Ditch Irrigation Systems in connection with the complaint against waste in the Waimea River and its tributaries filed by then Earthjustice law offices on behalf of Poai Wai Ola organization and the est Kauai Watershed Alliance.

The purpose of the site visits were to give interested parties a better understanding of the system. The Kokee and Kekaha Ditches are interlinked at a number of points that create a more complicated network than I knew.

Image above: Detail of handout map of Kekaha and Kokee Ditch System. Click to see it all larger.


SITE # 1

Waimea Neighborhood Center 9:45 am
A short briefing by Kekaha Agriculture Association (KAA) on the Kokee and Kekaha Ditch Systems.

SITE # 2
Waimea Canyon Lookout 10:30 am
Heading north on Kokee Road (Hwy 550), Turn right ~0.3 miles after mile marker 10
Waimea Watershed with view of Waipoo Falls (Kokee Stream). Flow in Kokee Stream is augmented by water returned from Kokee Ditch downstream of Kawaikoi, Waiakoali, and Kauaikinana Stream Diversions.

SITE # 3
Puu Lua Reservoir 11:00 am
Heading north on Kokee Road (Hwy 550), turn left at mile marker 12
Water from Kokee Ditch flows into Puu Lua Reservoir, which is located downstream of the sluice gate to Kauhao Gulch. The reservoir is maintained below 60 feet due to dam safety regulations and is used by the Division of Aquatic Resources (DAR) for sport fishing (trout are raised and released). Outflow from the reservoir continues towards the Puu Moe Divide.

SITE # 4
Puu Moe Ditch Divide 12:30 pm
Heading south on Kokee Road (Hwy 550), ~0.4 miles after mile marker 10
Kokee Ditch downstream of Puu Lua Reservoir. Water is divided between the Department of Hawaiian Home Lands (DHHL) lessees and the Kokee Ditch towards Kitano Reservoir.

SITE # 5
Black Pipe Siphon Viewpoint 1:15 pm
Heading south on Waimea Canyon Drive (Hwy 550), (See map) ~0.6 miles after mile marker 4
The Kekaha Ditch siphon conveys water from the eastern side of the valley to the western side. The siphon is located below the Mauka Hydropower Plant. Water continues in the Kekaha Ditch to the diversion point for the Menehune Ditch and on to the Mana Plain.

SITE # 6
End of Kokee Ditch 1:45 pm
Heading south on Waimea Canyon Drive (Hwy 550), ~0.1 miles after mile marker 3
Water exiting Kokee Ditch flows downslope into Kekaha Ditch.

SITE # 7
Kekaha Ditch Crossing at Hwy 550 2:15 pm
Heading south on Waimea Canyon Drive (Hwy 550), ~0.7 miles after mile marker 2
Kekaha Ditch downstream of Menehune Ditch withdrawal and before inflow from Kokee Ditch.

SITE # 8
Waimea Neighborhood Center 3:00 pm
Commission on Water Resource Management of the DLNR hears testimony from public on subjects from the Kokee and Kekaha Ditch Systems to need for water and homesteading on DHHL managed land to reach Kauai food self reliance.

One thing was clear from the presentation of Kekaha Agriculture Association representatives and the hydrologist hired by the Commission on Water Resource Management to survey the existing system - They saw the system with a mechanistic view. They read ditch flow in Millions of Gallons per Day (MGD) and siphon pipes as 48" diameter. They did not see the valleys, streams, and the plants, birds, fish and insects in them as a continuous living entity. Continuity in the living biosphere is a necessary condition for health and stability.

Many local westside people spoke eloquently on these issues. There were many influential people from Kauai and from the state as well as "stakeholders". The people were clear. Let them live on the land. Let the water be used by local people to farm, and feed people.  

My impression was that the members of the public that spoke were surprised by the warmth and sympathetic responses by the members that were present from the Commission on Water Resource Management: Chair Suzanne Case, Denise Antolini, Kamana Beamer, Jonathan Starr, and Michael Buck.

The questions the Earthjustice case has raised are related to the diversion of water from its normal course from the Alakai Swamp that on its own followed the natural terrain and into the Waimea River. These diversions were created in the early 20th century by plantation companies to grow sugar on the Mana Plain and the hilltops above it. These diversions have took tens of millions of gallons per day for almost a hundred years.

In my opinion, by taking the water out of a stream (along with fish, insects, plants) putting them through a ditch and a steel tubed syphon and running them through a hydroelectric generator creates a discontinuity in the fabic of life. There are many spots in many streams where the water does not run when it is "needed" by the KAA and its "customers". Those spots are where the biosphere breaks down.

Where Do We Go
By the early 21st century the sugarcane operations that demanded that water no longer existed. But the diversions continued. The biggest users are associated with Kekaha Agriculture Association (KAA) the Hawaii Agribusiness Development Corporation (ADC). Those users include the GMO chemical corporations BASF and Syngenta as well as Sunrise Capital that operates the Kauai Shrimp Farm. These corporations want a continued flow of the diverted water in the existing systems.

Other major players are looking for access to diverted water as well. KIUC wants access to Puu Opae Reservoir (now inactive). The plan would be to use the diverted water to drive a hydroelectric generator at night to provide electricity.

It is ironic that the users of water on the Mana plain feel they need the ditch systems. Before the Mana Plain was filled in by the sugarcane interests it was an extensive wetlands with swamps and ponds fed from the valleys above that extended to the top of the islands. Ditches were cut into the wetlands to carry the water away. To this day pumps are used to carry water to the ocean so as to control the level of water on the GMO fields. That pumping is done now "for free" by the US military to keep the Pacific Missile Range Facility dry and secure.

I believe in engineering the flow of water to slow its course through the island. It's a primary principle of permaculture. Never more than a small percentage of a stream should be taken from its natural course. The engineering of the sugarcane companies was to take all the water they could use (and more) and only let the overflow of their dams reach the the stream again.

I'd rather see the Mana Plain wetlands restored to their state before the 20th century. I'd rather see the current ditch system greatly reduced in scope and not allowed to create complete discontinuity in stream flows.

Global warming will bring water problems to Kauai. Even a few degrees of temperature rise will raise the altitude of rain forming clouds. Scientists at the University of Hawaii havce calculated that only a few hundred feet increase in cloud elevation will have a significant impact on Waialeale's ability to catch the rain. As it is, rain gauge measures their have been diminishing for decades. Global Waring are also making the Trade Winds less reliable and increasingly making El Nino and La Nina events more chaotic.

Bottom line: We have to prioritize how we use water on Kauai. Growing local food and providing for our people comes first. Fuck the corporations. And that is how the law is written that the Commission on Water Resource Management must follow.
Priority 1) Appurtenant rights of land that were cultivated in kalo(taro).
Priority 2) Hawaiian rights of traditional and customary practices.
Priority 3) Riparian rights protect people who live along the banks of rivers or streams. Priority 4) Correlative rights of those who own land overlying a ground water source.

See inset below for details.

From (www.law.hawaii.edu)
Today, Hawaii’s Constitution and Water Code recognize specific rights to ground and surface water, including appurtenant, riparian, Native Hawaiian, and correlative rights. To better understand how the Constitution and Code were designed to operate,it is important to have a basic understanding of these rights.

1. Appurtenant Rights
Appurtenant rights appertain or attach to parcels of land that were cultivated, usually in the traditional staple kalo, at the time of the Mähele of 1848. Hawaii law recognizes that such land retained rights to the amount of water necessary to continue to cultivate crops. Although some kuleana land has appurtenant rights, land need not have been awarded as a kuleana to retain such rights. See, e.g., Haw. Rev. Stat. § 174C-101(d) (recognizing the “appurtenant water rights of kuleana and taro lands”). Because appurtenant rights attach to the land and not to any individual, they can be exercised by property owners irrespective of race or ethnic background.

Appurtenant rights have the highest level of protection under Hawaii law and, as mentioned earlier, are a public trust purpose. For example, Hawaii’s Constitution recognizes that the Water Commission “shall set overall water conservation, quality and use policies”; but clarifies that any such priorities shall “assur[e] appurtenant rights[.]” Haw. Const. art. XI, § 7. The Water Code also recognizes the primacy of appurtenant rights: “Appurtenant rights are preserved. Nothing in this part shall be construed to deny the exercise of an appurtenant right by the holder thereof at any time.

A permit for water use based on an existing appurtenant right shall be issued upon application.” Haw. Rev. Stat. § 174C-63. Despite these strong protections, the Water Commission has never inventoried or forecasted the amount of water necessary to supply existing or future appurtenant rights. See Haw. Rev. Stat. §§ 174C-31(c), (d). Although the Water Commission’s jurisdiction to make determinations of appurtenant rights was made explicit in 2002, at the time of this primer’s publication, the Commission has yet to issue a formal declaration of any appurtenant rights, even though individuals have applied for such determinations.

Given the lack of action on the Water Commission’s part, appurtenant right holders have had difficulty protecting their interests. This has been complicated by the Hawai‘i Supreme Court’s ruling that appurtenant rights may be severed if attempts are made to transfer or reserve these rights. See Reppun v. Board of Water Supply, 65 Haw. 531, 552, 656 P.2d 57, 71 (1982). Such reservations or transfers were and remain commonplace in deeds conveying property; thus, some appurtenant rights have been extinguished.

2. Native Hawaiian Rights
Given Hawaii’s unique history and background principles of property law, our laws recognize and protect traditional and customary Native Hawaiian rights and practices. “The State reaffirms and shall protect all 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. Const. art. XII, § 7.

In addition to that constitutional mandate, the Water Code includes specific provisions respecting and upholding the rights of Känaka Maoli, which recognize that the “traditional and customary rights of ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 shall not be abridged or denied by this chapter.” Haw. Rev. Stat. § 174C-101(c). The Code makes clear that such rights include, but are not limited to, the cultivation of kalo on one’s own kuleana, as well as the right to gather various resources for subsistence, cultural, and religious purposes, including: hïhïwai (or wï); ‘opae; ‘oopu; limu; thatch; ti leaf; aho cord; and medicinal plants. Haw. Rev. Stat. § 174C-101(c). Similar to the treatment of appurtenant rights, the Code specifically provides that the “traditional and customary rights assured in this section, shall not be diminished or extinguished by a failure to apply for or to receive a permit under this chapter.” Haw. Rev. Stat. § 174C-101(d).

The Code also recognizes and upholds rights conferred by “the Hawaiian Homes Commission Act, 1920, as amended, and by chapters 167 and 168, relating to the Molokai Irrigation System.” Haw. Rev. Stat. § 174C-101(a). Moreover, the Code directs the Commission to “incorporate and protect adequate reserves of water for current and foreseeable development and use of Hawaiian home lands as set forth in section 221 of the Hawaiian Homes Commission Act.” Haw. Rev. Stat. § 174C-101(a).

Comparable to the treatment of appurtenant rights, both traditional and customary Native Hawaiian rights and reservations for the Department of Hawaiian Home Lands are public trust purposes. Despite that status, the Water Commission has yet to forecast the amount of water needed to supply existing and future traditional and customary rights as well as the existing and future needs of the Department of Hawaiian Home Lands, frustrating the ability of those with such rights to effectively exercise them.

See Haw. Rev. Stat. §§ 174C-31(c), (d); -101(a). As a result, the strong protections intended for these rights remain largely on paper and unenforced on the ground in the community.

3. Riparian Rights
In Latin, ripa means river bank. Riparian rights protect the interests of people who live along the banks of rivers or streams to the reasonable use of water from that stream or river on the riparian land. Those rights are subject to other rights of equal or greater value, such as appurtenant, traditional and customary Native Hawaiian, other riparian rights, or reservations for the Department of Hawaiian Home Lands.

Hawaii’s Constitution protects existing riparian uses. Haw. Const. art. XI, § 7. Due to the Water Code’s establishment of Water Management Areas as described in Part II(F), below, Hawaii has a bifurcated system of rights. In non-designated areas, the common law controls and anyone with riparian land retains riparian rights. Once an area has been “designated,” however, only existing riparian uses, as opposed to unexercised riparian rights, continue to retain preferential status. See Haw. Const. art. XI, § 7.

Although riparian landowners who are not currently using water from the adjacent stream may apply for a permit, they will not receive any special preference if they seek to use that water on riparian land. Existing riparian uses, on the other hand, retain such a preference.

In Reppun v. Board of Water Supply, the Hawaii Supreme Court ruled that riparian rights cannot be severed from riparian land. 65 Haw. 531, 550, 656 P.2d 57, 70 (1982). Efforts to sever or transfer such rights, which usually occur as part of a deed of sale, are ineffective. Reppun, 65 Haw. at 550, 656 P.2d at 70. This means that even if you have riparian land and the deed conveying the property reserves or transfers ripari rights or water rights in general, your land will still retain those rights unless the geographic region is designated a Water Management Area.

4. Correlative Rights

Similar to the riparian right to surface water, correlative rights protect the interests of individuals who own land overlying a ground water source or aquifer. This land has rights that correlate to the water below it. Like riparian rights, Hawaii’s Constitution protects existing correlative uses, as opposed to inchoate correlative rights. This means that correlative rights are protected in non-designated areas, but only existing correlative uses receive priority in designated Ground Water Management Areas.

Moreover, correlative rights are subject to the reasonable-use doctrine, which means that in times of a water shortage each use with correlative rights has a share to a reasonable amount of water as long as the correlative use does not injure the rights or interests of other correlative right holders. Hawaii courts first recognized correlative rights in City Mill Co. v. Honolulu Sewer & Water Comm’n, 30 Haw. 912 (1929). The Hawaii Supreme Court later clarified the current correlative rights rule in the context of the State Water Code in Waiahole I, 94 Hawaii 97, 9 P.3d 409.

5. Other Water Rights

During the Hawaiian Kingdom and Territorial period, various court decisions created a range of rights, such as konohiki (or surplus) and prescriptive water rights. Those rights no longer exist under the current regulatory regime, and the range of rights now available are outlined and defined in the Water Code.

See also:
Ea O Ka Aina: The Mana Mirage 8/3013
Mana means supernatural and dry in Hawaiian and these visitors to Kauai in 1847 found magic there.

Ea O Ka Aina: The Golden Plain 8/27/13
Your guide uses his paddle to pole you into the marshy water of the Mana Plain as the canoe rocks.

Ea O Ka Aina: Eroding Kauai 3/16/13
These two areas were the largest Hawaiian wetland systems - Mana Plain and Pearl Harbor

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