Climate of Our Future

Earthjustice.org

Citizens encouraged by proposed ruling over island water resources

April 12, 2009

Iao Stream Photo: Wikipedia

Honolulu, HI – On April 9, 2008, the State of Hawai`i’s Commission on Water Resource Management (Water Commission) issued a proposed ruling to restore flow to four major streams on Maui known as Nä Wai `Ehä, or “The Four Waters” of Waihe`e River and Waiehu, `Ïao, and Waikapü Streams.  Currently, the streams are drained dry by ditch systems built during Hawai`i’s sugar plantation era that still divert water even after major reductions in plantation agriculture. The 210-page proposed decision, authored by Hearings Officer and Water Commissioner Dr. Lawrence Miike, would restore a total of 34.5 million gallons a day to Nä Wai `Ehä, or around half of the diverted flows.

The proposed decision is the first step by the Water Commission to resolve a legal battle dating back to 2004, when Maui community groups Hui o Nä Wai `Ehä and Maui Tomorrow Foundation, represented by Earthjustice, petitioned the Commission to restore the streams. In partnership with the Office of Hawaiian Affairs, the community groups have pursued this legal action so that the streams would once again fully support native stream life and community uses such as traditional wetland kalo farming.

Maui stream map — click for larger version

The Commission’s Hearings Officer issued the proposed decision after conducting a lengthy administrative trial extending from December 2007 to October 2008 and receiving testimony from dozens of witnesses and hundreds of pages of exhibits and briefs. The proposed decision now goes to the entire commission, who will receive the parties’ written objections on May 11, hear oral argument, then issue a final decision.

“After a century of diversions, we are encouraged by this important step towards restoring life-giving stream flows back to Nä Wai `Ehä,” said John Duey, President of Hui o Nä Wai `Ehä and longtime resident of `Ïao Valley. ”These legendary streams deserve to be protected for present and future generations.”

Nä Wai `Ehä are perennial streams that traditionally supported a rich native aquatic ecosystem and a thriving Native Hawaiian community cultivating the largest continuous area of wetland kalo fields in the Hawaiian Islands. Since the plantation era, however, two companies have diverted most of the stream flows of Nä Wai `Ehä. The first, Hawaiian Commercial & Sugar (HC&S), a division of Alexander & Baldwin (A&B), operates one of Hawai`i’s last sugar plantations on Maui’s central plain. The other, Wailuku Water Company (WWC), is the remnant of C. Brewer & Co.’s former Wailuku Sugar plantation, which sold all its former farmlands for development and is now pursuing the business of selling the diverted stream water.

The proposed decision concludes that restoration of stream flows will benefit public instream uses while “accommodating both instream and offstream uses where feasible.” Notably, the proposed decision confirms that Hawaiian Commercial & Sugar has reasonable alternatives to Nä Wai `Ehä water, including the millions of gallons a day it has historically used from its non-potable wells, as well as the ability to minimize its ongoing loss of 9 to 12 million gallons a day from its unlined reservoirs and ditches.

“The proposed decision validates what we’ve known all along, that HC&S has viable alternatives to destroying these streams, but prefers to use stream water because it is ‘cheap’ or ‘free,’” said Irene Bowie, Executive Director of Maui Tomorrow. ”There is nothing cheap or free about the priceless natural and cultural value of streams flowing mauka to makai (from the mountains to the sea), and private companies aren’t entitled to maximize their profits off of public water.”

The ongoing Nä Wai `Ehä case parallels the landmark Waiähole Ditch case on O`ahu – a battle over the future of water and land use in Hawai`i that resulted in the path-breaking decision of the Hawai`i Supreme Court in 2000 recognizing water resources as a public trust and reaffirming the state’s trust responsibilities to protect public instream uses. The ditch system in this case diverts about 60 to 70 million gallons a day, more than twice the amount diverted by the Waiähole Ditch.

Streams and ditches in Maui – Click for larger version (PDF)

Like the Waiähole case, the Nä Wai `Ehä case involves local community groups seeking to ensure lasting protection for streams in the face of unchecked demand for industrial agriculture and urban development. Unlike the Waiähole case, where the closure of the former plantation (Oahu Sugar) led to an early return of unused water, here, the former Wailuku plantation has sought to maintain control over the water as an independent source of private profit.

“Wailuku Water Company’s attempted water profiteering is an affront to the principle, enshrined in the Hawai`i Constitution and affirmed by the Hawai`i Supreme Court, that water is a public trust resource that belongs to all,” said Earthjustice attorney Isaac Moriwake. ”We hope that the Commission will follow through on its trust obligations to ensure that justice, and the waters of Nä Wai `Ehä, will flow freely for the benefit of all the people of Hawai`i.”