Maui water agreement called secretive, 'void'

By Timothy Hurley
Advertiser Maui County Bureau

WAILUKU, Maui — The Maui County Board of Water Supply is mulling a revised agreement with a coalition of landowners amid charges that the negotiations illegally took place behind closed doors and that the agency would be giving millions of gallons of water away for free.

The proposal to reserve 8.9 million gallons of water a day from the '?ao Aquifer for four private landowners will be considered today by the water board.

The landowners are private partners in the Central Maui Source Joint Venture, which originally signed an agreement with the water board in 1975 that led to the development of Kihei, Wailea and Makena. The partnership constructed three wells in Waiehu and joined in developing the large water transmission line that serves the South Maui area.

The private partners are Makena Resort, Wailea Development Co., Hawai'i Land and Farming Co. Inc. (formerly C. Brewer) and A&B Properties Inc.

The joint venture was based on a private hydrology study that estimated '?ao Aquifer could yield 36 million gallons of water a day, and the agreement called for the partnership to receive 19 million gallons a day as their share for building the wells and transmission lines.

But just a few years later, it was discovered the aquifer could produce no more than 20 million gallons a day. Over the years, demand by the partners has reached 5 million and 6 million gallons per day, but the issue of just how much water they eventually would be allowed to take was clouded by the new sustainable yield estimates.

Water officials have been negotiating to revise the agreement for 15 years, but those efforts failed until recently, when a three-member subcommittee of the board struck a deal with the landowners and introduced the proposal last week.

In addition to the daily allotment of 8.9 million gallons, the joint venture partners have agreed to contribute up to $1.5 million interest-free to develop another well, with the Department of Water Supply matching that amount.

Water Board member Jonathan Starr called the agreement "a generous gift" to the landowners at a time when the future availability of water for Central and South Maui is uncertain.

According to the U.S. Geological Survey, water levels in the '?ao area have declined steadily. In February, '?ao had the lowest recorded water level of any February on record. Starr pointed out that scientists from that agency have questioned whether the aquifer's sustainable yield may be too high.

Starr said that with the landowners getting so much from '?ao, it may lead to moratoriums and mandatory conservation down the line.

Director of Water Supply David Craddick said the '?ao Aquifer can handle the proposed water amounts. The question, he said, is whether the partners will be made to pay for an estimated $3 million to $4 million in backup wells that are needed in case the present system fails.

Robert Parsons of Sierra Club Maui said that because the original agreement was based on erroneous assumptions about the sustainable yield of the aquifer, the deal should be invalidated. "In legal terms, this amounts to a 'mutual mistake in material fact,' meaning the original agreement is rescindable, void, or simply doesn't exist,'' Parsons said.

Starr also objects to the agreement on another level. He said it was negotiated in violation of the state's sunshine law by a secret committee that was never appointed by the board. Parsons agreed, calling the deal a throwback to "plantation politics."

While a county attorney is looking into the charge, Craddick said the committee apparently needed confidentiality to provide meaningful discussions in negotiating the contract.

Parsons also contends the county cannot legally promise water to anyone in exchange for a loan to provide a new source, because water is a public trust.

Community activist Sally Raisbeck agreed and said the deal infringes on the territory of the State Commission on Water Resources. She said the recent state Supreme Court decision on the Waiahole Ditch conflict confirmed that the state is the water trustee.

"The Maui Board of Water Supply cannot give away or sell or trade part of this trust since you are not the trustees,'' she said.