Consent Decree
This section is a timeline of groundwater activities at the public level within the Haiku-Upcountry area. A good portion of this history concerns the so-called EM Plan, which resulted, after years of litigation, in the 2003 Consent Decree. But the underlying issue was always whether the Haiku aquifer can be used as a water supply for the rest of Maui without doing harm to the residents and ecosystem of Haiku. The source documents for this narrative can all be found on this page.
A closely related discussion on ground water, sustainability, and the future follows this one. To jump right to it, click here.
1991
The County of Maui issues an Environmental Assessment as part of the permit requirement to drill two exploratory wells, called the “H’Poko wells” (Hamakuapoko), in the Paia Aquifer as the beginning of a larger group of wells planned to extend east into the Haiku aquifer. The wells were drilled and testing was done for Ag pollutants. The test revealed some pollutants, but not at levels that triggered state or federal limits for human consumption, however the testing was not done by a certified lab.
1992
Maui County BWS issues a Draft EIS as part of the permitting process to drill ten wells in the Pa’ia-Ha’iku area. Isaac Hall and several individuals and groups file comments to the Draft EIS claiming the EIS did not discuss the project’s actual impacts.
1993
Maui County BWS issued a Final EIS for the East Maui Water Plan which proposed a County well field (10 to 16 wells with up to 15 mgd capacity ) on A&B, Inc lands in two aquifers: Paia/Haiku and included the 2 wells in Paia aquifer drilled earlier. The Final EIS was accepted in Aug 1993. This EIS became known as the “EMPlan”.
In October, Isaac Hall, on behalf of several Sierra Club members (as individuals) and several other groups filed a suit claiming the EIS was inadequate since it failed to reveal impacts on the Haiku aquifer, existing streams and ocean resources and did not discuss the fact that the ground water where wells were proposed was polluted with DBCP and other contaminants.
1994
The court agreed with the plaintiffs, found the EIS inadequate, required that a supplemental EIS (SEIS) be prepared and required a monitoring/observation well to be constructed in the Haiku aquifer to provide baseline data on the aquifer before any future larger wellfield was installed. A later court order (see 2000 below) stipulated that a protocol developed by the USGS for observing the nature of the aquifer during the drilling process be followed.
As part of rejection of the 1993 Final EIS, Maui County was required to send H’poko water samples to a certified lab, and both wells were found to have contamination levels of DBCP and TCP that exceeded state standards.
1998
County and East Maui parties disagreed over the drilling of the Haiku Monitor well. In 1999 the matter went to Judge Mossman.
The County acquires the Kaupakalua well from a private company (Kulamalu Inc./Dowling Co.) who had drilled it for a housing development. Details on the Dowling/Kaupakalua well can be found here.
1999
The County reached a 40 year settlement with Dow Chemical who were a successor to Occidental Petroleum and Shell Chemical companies who had sold the original DBCP Ag chemicals to Maui pineapple growers that are now found in the ground water. The settlement provided that Dow would pay certain ongoing costs to clean up well water for agreed upon County wells until 2039. The two H’poko wells are included in that agreement. Future wells can also be included. It is not clear if the agreement covers wells that are not polluted with DBCP, but are polluted with related Ag chemicals EDP or TCP.
A Final EA was issued by Maui County BWS proposing to turn the “exploratory” Hamakuapoko wells into production wells.
2000
An order for declaratory relief was issued by the judge in favor of plaintiffs that set out the protocol to be followed for the Haiku monitor well. (This was not drilled until 2002)
2001
Maui County produced a Draft Supplemental EIS for the EMPlan project, but did not issue a Final Supplemental EIS until around 2002 when it was accepted by the BWS in Oct 2002.
2002
The Haiku monitor well was drilled, (state well 5418-01) but the protocol outlined by USGS was not followed and the County drilled the well so it could be used as a production well. The well has monitoring data for a few years, and then records appear to be sparse.
The Maui County Board of Water Supply continued to pursue the East Maui Water Plan (“EMPlan”) and issued a Supplemental EIS on the project. This proposed two possible well configurations, one at 700 ft elevation and one at 1000 ft Elevation to try to avoid ag contaminants in the Haiku aquifer.
2003
Isaac Hall on behalf of SC and several other groups and individuals filed a suit claiming the Final SEIS was inadequate since it still failed to reveal impacts on marine waters, existing streams and the Haiku aquifer, the county had failed to follow the monitor well testing procedures protocol set out in the 1993 consent decree, and did not adequately deal with fact that the ground water where wells were proposed was likely to be polluted to levels exceeding state standards, with DBCP, EDP and TCP, as had now been shown at the Hamakuapoko wells through new testing.
Mayor Arakawa invited the plaintiffs to settlement discussions and the current East Maui Consent Decree was signed in late 2003. As per the consent decree, the 2002 SEIS was withdrawn.
In 2003, the first Po’okela well is drilled in the Makawao aquifer.
2006
Maui county installed portions of a 36″ pipeline potentially connecting the Hamakuapoko wells with the Central Maui water systems. The 2004 Consent Decree only allowed for part of the pipeline to be 36″
Isaac Hall wrote to County of Maui asking that they halt pipe installation since it was not proceeding according to terms of the 2003 consent decree, but was unable to get an injunction to halt the work.
2012
After nearly a decade of no communication on the EMPlan, the county water department announced it was consulting with the plaintiffs to begin a new EMplan process, as was required by the 2003 Consent Decree. Several meetings and conference calls were held, with no agreement. Then, in March 2013, the County BWS unilaterally published an RFP for two “monitor wells” in Haiku in the “consent decree area”.
2013
Isaac Hall on behalf of the plaintiffs filed a complaint for declaratory and injunctive relief, to enforce the 2003 consent decree and asked the DWS to withdraw the RFP for the wells and the agreement for USGS studies to support the wells. The plaintiffs argued that a new EIS was needed as per the 2003 consent decree and the other actions required to be undertaken prior to any new EMPlan EIS, by the 2003 consent decree had not been followed.
The County told the court it was following the consent decree. The court suggested the parties try to settle the matter among themselves. Settlement agreements were drawn up and reviewed. they included a county request for a “Limited Amendment to Consent Decree to Allow Collection of Data for Scientific Purposes Only” which the plaintiffs were willing to agree to if other sections of the consent decree were strengthened. At two weeks before the court hearing it appeared a settlement would be accepted by Maui County, but this fell through and matter went to court.
2014
The court ruled entirely in favor of plaintiffs, the Sierra Club, and allies.
Maui County filed a new petition with the court asking them to either vacate or amend the EMPlan CD of 2003 as “unworkable”.
Maui DWS files an EIS for an exploratory well in Pukalani, in the Pa’ia aquifer. The EIS was later withdrawn.
2015
Isaac Hall, on behalf the plaintiffs, filed a brief in opposition to the County’s request and asked the court to uphold the 2003 consent decree.
The court ruled entirely in favor of plaintiffs and upheld the CD.
Maui county proposes its most recent action which seeks to exploit the Haiku aquifer, by drilling a string of 10 wells just outside the upper limits shown in the 2003 Consent Decree maps (“the Makawao Well String”).
Maui County sues, and asks Judge Loo (who has not heard any of the previous cases) to make a Declaratory Ruling that the proposed 10 wells would be outside the limits of the 2003 Consent Decree boundaries and not subject to terms of the decree.
The Sierra Club and allies countersued on the grounds that Maui County DWS needed to file an EA or EIS for the proposed project, but has not. The counter-suit also asks that the matter be transferred to the newly created Environmental Court and Judge Cardosa (who has heard the case for the past four years.)
2017
No ruling from Judge Cardosa on whether he would hear the case
HC&S shuts down sugar operations creating potential access for Maui County DWS to more cheap stream water.
Maui County proposes that both parties dismiss the case without prejudice and this is done.
Summary
The Consent Decree continues to be operative today but clearly there is a lot of interest in Haiku groundwater by those planning for future water needs across Maui. Ha’iku is close to Central Maui and Haiku gets lots of rain, so it is an obvious choice. But how reliable is it? Check out our companion discussion on ground water, aquifers, sustainable yield, and the future, here.