The Origins of Our Current Water Management:
Agribusiness Development Corporation (ADC) as State Licensor of West Kaua‘i Ag Lands,
and Kekaha Agriculture Association (KAA) as a "Tenant Association" land manager
ADC = Agribusiness Development Corporation:
ADC is a state entity under the Hawaii State Department of Agriculture. ADC licenses thousands of acres of our westside state agricultural lands to several corporate licensees. Those licensees are members of a "not for profit" entity called Kekaha Agriculture Association or "KAA" (see more about KAA below). While ADC is ultimately legally responsible for the management of its state agricultural lands, ADC and KAA signed a Memorandum of Agreement on April 1, 2007 (amended in 2008) that gave KAA the responsibility of managing the ditches and ditch diversions of the Waimea River. This agreement allows KAA to manage west Kaua'i waters at its discretion and for the benefit of the KAA land license holders.
KAA = Kekaha Agricultural Association:
KAA is a private, dues-paying membership group consisting of licensees or sub-licensees of ADC's west Kaua‘i lands. KAA is primarily financed and beneficially administered by large or multinational companies including, as of 2021: Corteva Agriscience (a successor entity of a merger between Dow Chemical (through Dow AgroSciences) and DuPont Pioneer (through Pioneer Hi-Bred International) established in 2018, Hartung Brothers, Inc., a contract grower (as direct licensees and sublicensees of lands leased by Syngenta), BASF (a chemical corporation that acquired Bayer agricultural businesses and assets from Monsanto in 2018), and Sunrise Capital (a shrimp farm). KAA's proven wasting and dumping of Waimea River waters through the Koke‘e and Kekaha Ditches violates Hawaii's water laws resulted in a historic 2017 Mediation Agreement. This Agreement mandated that ADC and KAA alter its river diversions, and monitor and restore waters to the Waimea River.
How Our Waters are Being Managed:
Unlawful Waste and Outright Dumping of Diverted River Water
In July 2013 Po‘ai Wai Ola and Earthjustice submitted a complaint and petition for a declaratory order against the waste of water diverted from the Waimea River system by the state Agribusiness Development Corporation (“ADC”) and its land manager, the tenant association called Kekaha Agriculture Association (“KAA”) (collectively, “ADC/KAA”).
As explained in their legal filing, despite the closure of the Kekaha Sugar plantation, ADC/KAA continued the large-scale diversions of the Kekaha and Koke‘e Ditches resulting in continued dumping of diverted river water. The legal filing demanded that excess diversions immediately cease and interim instream flow standards ("IIFS") be amended for the Waimea River and its headwaters and tributaries. This case led to a historic Mediation Agreement in 2017 under which the state assigned ADC, KAA and the local Kaua‘i utility company with responsibilities to alter its ditch diversions, set up monitoring equipment and measure water flows. As of 2021 despite having legally agreed to do so in 2017, ADC has not yet fulfilled such responsibilities.
Following is a background (with source citations) on the management history of our water, how ADC and KAA came to be appointed the west Kaua'i water managers of the Koke'e and Kekaha Ditch systems that divert water from the Waimea River, and how they presently manage our waters.
The Origins of Current Water Diversions
A flourishing, self-sufficient ahupua'a based Waimea community changed dramatically in the late 1800's with the arrival of the sugar industry. The extensive lo‘i kalo from mauka to makai went fallow as “most of the water [was] taken higher up by the Kekaha Plantation ditch.” (Native Planters at 402).
In the late 1870s, Kekaha Sugar began planting sugar cane on fifty acres in the then-vast marshlands in Kekaha and Mana, which it leased from the Hawaiian government. (Carol Wilcox, Sugar Water 92 (1996); Deborah Saito & Susan Campbell, Hawaiian Sugar Planters’ Association Plantation Archives, Register of the Kekaha Sugar Company, 1880-1946 1 (1986), available at http://www2.hawaii.edu/~speccoll/m_plantations.html).
In 1923, Kekaha Sugar expanded its lease to cultivate 2,000 additional acres in the mauka highland region. (Sugar Water at 96). By the 1930s, Kekaha Sugar was leasing over 7,000 acres of agricultural land from the government. (KSC Register at 2). Kekaha Sugar converted the Kekaha-Mana wetlands by filling in low areas and operating two large draining pumping stations at Kawaiele and Nohili. (Dep’t of Land & Natural Res., Kekaha Sugar Infrastructure Study, Job).
In 1992, Kekaha Sugar reported cultivating about 11,750 acres of its total 27,834 leased acres, mostly in sugar cane, but also some diversified agriculture. (Water Use Declarations at 148). In 2000, Kekaha Sugar was cultivating 7,758 acres, mostly in sugar cane: 2,668 acres in the mauka highlands and 5,090 acres in the makai plain. (Kekaha Infrastructure Study at I-1). Others were using an estimated total of around 9 mgd of Kekaha Ditch water in 2000; these included two land development companies (Kikiaola and Knudsen, 4.5 mgd combined), two corn companies (Pioneer and Navortis, 1.5 mgd combined), and Menehune Ditch users (2.5 mgd). (Id. at I-5).
During this time, despite the reduction in cultivated acreage and the ceasing of water-thirsty sugar cane cultivation, the Kekaha and Koke‘e Ditches’ diverted flows did not appreciably change. For nearly 12 years between 1988 and 1999, the average ditch flows in the Kekaha and Koke‘e Ditches were around 32 and 13 mgd, respectively. (See id. at I-9, -11).
The Exit of Sugar, The Arrival of ADC and KAA
After Kekaha Sugar’s closure, the Hawaii Department of Agriculture entity, ADC, formally assumed management of 12,592 total acres of the former plantation lands in 2003. (See Governor's Executive Order No. 4007 (Sept. 16, 2003)). On April 1, 2007, ADC entered into a Memorandum of Agreement with a private agricultural tenants’ association, KAA, delegating to it the management of the ditch and drainage infrastructure. (For more information, see the Restated and Amended Memorandum of Agreement Between State of Hawaii Agribusiness Development Corporation and Kekaha Agriculture Association (Aug. 29, 2008) (“ADC/KAA MOA”). (Readers can obtain this document by making an official public document request to the Agribusiness Development Corporation).
ADC/KAA currently do not provide any reporting of actual water uses -- even though their MOA requires that KAA members “record and report monthly water use from the surface water diversions in accordance with [Haw. Admin. R. §] 13-168-7.” (ADC/KAA MOA at 17). Nonetheless, the unambiguous and plainly visible reality is that only a fraction of the former plantation lands are currently being cultivated with far less water-intensive crops than the notoriously thirsty sugar cane crop. Seed field test operations, for example, involve crops like corn that use less water than sugar cane, and also require isolation distances between plantings, resulting in large fallow areas. The operations on the Kekaha-Mana Plain are no exception; in contrast to dense sugar cane plantings, large swaths of land on the plain have no visible plantings at all.
As for the mauka lands irrigated by the Koke‘e Ditch, the entire region is almost completely idle, except for a Hawaiian homesteader’s pastoral land of a few hundred acres.
Ongoing Diversions, Waste, and Dumping
Despite this dramatic decline in cultivation and actual water demands due to Kekaha Sugar’s closure, ADC/KAA continue to divert Waimea River flows in amounts comparable to the sugar plantation. According to ADC’s ditch flow reports to this Commission from 2010 through May 2013, Kekaha Ditch took an average of 31.3 mgd, and Koke‘e Ditch took an average of 7.6 mgd. (See Commission’s ADC Ditch Flow Reports).
Nearly eight years ago, the DOA acknowledged the decline in water demands because of Kekaha Sugar’s closure and recognized not only the potential need to downsize ditch capacity, but also potential “alternative uses” such as “stream restoration.” (Dep’t of Agric., Agricultural Water Use and Development Plan 57 (2004) (“DOA AWUDP”). While some reduction in reported ditch flows appears to have occurred over the years, there has not been a change in ditch operations or design commensurate to the collapse of water demand from the demise of sugar cultivation.
On their face, the discrepancies between the ongoing diversions and the vastly less land- and water-intensive operations establish that the diverted Waimea River system flows are being wasted.