Community Groups Flag Concerns on Further Corrections Needed at Nā Wai ‘Ehā
Maui community groups Hui o Nā Wai ‘Ehā and Maui Tomorrow Foundation, who started legal action 17 years ago to restore Nā Wai ‘Ehā stream flows diverted by plantations for 150 years, are expressing concerns about key parts of a commission decision they are hoping can be clarified or improved.
The Hawai‘i State Commission on Water Resource Management issued a decision at the end of June in the long-running legal battle over the stream flows of Nā Wai ‘Ehā, Maui’s “Four Great Waters.”
The 362-page decision, is described by state officials as the “most comprehensive ruling on water rights in Hawai‘i’s history.” It implements a new system for protecting and managing stream flows and reversing the ecological and cultural harms of Maui’s plantation past.
While Hui o Nā Wai ‘Ehā expressed appreciation to the Commission for its work on the decision, as well as to all the Nā Wai ‘Ehā community members and supporters for their steadfast commitment, patience, and work throughout the 17-year journey, organization president Hōkūao Pellegrino, said he’s concerned and disappointed with some key parts of the decision.
“These include a number of oversights in allocating too much water to several big diverters, while restoring little or no flows to Nā Wai ‘Ehā streams even though the closure of Hawaiian Commercial & Sugar Company in 2016 should allow much more water to be returned.” (The full statement released today by Hui o Nā Wai ‘Ehā is posted below).
The Commission’s final decision corrected several basic legal errors on traditional water rights in the hearings officer’s proposed decision and recognized the priority rights of Native Hawaiian community members, many of whom have lived on and farmed their lands for generations.
But Earthjustice, the firm that represented the groups said “the decision did not also take the opportunity to restore more stream flows after the close of the HC&S plantation, leaving the streams at around the same flow levels previously set in 2014, while the company was in full operation.”
“We thank the Commission for its hard work on the final decision, which included important corrections on the legal priorities for water rights,” said Earthjustice attorney Isaac Moriwake, who has litigated the Nā Wai ‘Ehā case on behalf of the community groups for the duration. “It seems some additional work and corrections are still needed to ensure this landmark decision does justice to the hard work from the community for almost two decades, and the monumental importance of the case for generations to come. We can truly restore Nā Wai ‘Ehā and turn the page on Maui’s plantation-era water diversions.”
The Commission’s decision combines the determination of mandated instream flow levels with the issuance of permits for every user of Nā Wai ‘Ehā stream water. It is being looked to as a model for the comprehensive management of water resources under the public trust after the plantation era.
The case previously went to the Hawai‘i Supreme Court, which ruled in 2012 that the Commission violated the law for failing to protect public and Native Hawaiian rights to flowing rivers and streams. In 2014, a historic settlement restored continuous flow to all four of Nā Wai ‘Ehā for the first time in 150 years.
After the closure of HC&S in 2017, the community groups initiated further legal action to restore more stream flows to Nā Wai ‘Ehā, since the plantation had used 80 percent of the water to cultivate water-intensive sugar crops.
Earthjustice says that currently, the main diverters of Nā Wai ‘Ehā water are Mahi Pono, the company that bought the former HC&S agricultural lands, and Wailuku Water Company.
One of the oversights that the community groups has identified in the decision involves the Commission granting Mahi Pono more water than the amount agreed upon in a joint settlement and stipulation the parties submitted during the closing arguments before the Commission in November 2019.
“We’re hopeful that we can work out these important fixes and avoid more twists and turns including appeals,” said Pellegrino. “After 17 years of carrying this case to this point, we can do better for our streams as well as for present and future generations who live and farm in Nā Wai ‘Ehā.”
Official Statement re Nā Wai ʻEhā
June 29, 2021
Hui o Nā Wai ʻEhā would like to express our appreciation to the Contested Case Hearing Officer, Water Commissioners, and staff who diligently worked on this case, knowing this is one of the most comprehensive water rights cases in Hawai‘i’s history. We would also like to mahalo Nā Wai ʻEhā community members, kūpuna, kuleana kalo farmers stream restoration advocates, the Office of Hawaiian Affairs and Earthjustice for their steadfast commitment, patience, and working tirelessly with us throughout this 17 year journey.
Unfortunately, after a preliminary review of the Final Decision and Order, Hui o Nā Wai ʻEhā is concerned and disappointed with several key parts of the decision. We were surprised to find not only a number of oversights and inconsistencies among the various granted Water Use Permits, but also that the Commission chose to restore little or no flows to the IIFS (Interim Instream Flow Standards) for the four rivers and streams of Waikapū, Wailuku, Waiehu, and Waiheʻe.
Hui o Nā Wai ʻEhā, as well as kuleana kalo farmers and community members, strongly advocated for increasing the IIFS because much more water could be restored following the closure of HC&S in 2016, Hawaiʻi’s largest sugar plantation. Yet, the Commission left the IIFSs largely at the status quo and ignored the extensive road map we provided via our exceptions and closing arguments. The Final Decision truly falls short and lacked the depth and breadth our community was waiting patiently and hoping for while the decision was pending over these last 1.5 years.
After 17 years of carrying the case to this point, the Hui believes we can do better for our streams as well as for present and future generations who live and farm in Nā Wai ʻEhā. Hui o Nā Wai ʻEhā is weighing all options as to the next steps we will take to resolve some of these major discrepancies.
Statement from OHA Board Chair Carmen “Hulu” Lindsey
Yesterday’s Nā Wai ʻEhā decision and order represents a historic and long-awaited step in the ongoing struggle to uphold the public trust, including Native Hawaiian rights protected under the trust, in the water resources of Nā Wai ʻEhā and throughout our islands.
For 17 years, farmers and community members have fought to restore stream flow to Nā Wai ‘Ehā, and to secure their rightful access to water necessary for the cultivation of lo‘i kalo and other crops in what was once regarded as the agricultural “breadbasket” of Maui’s largest population center. Thanks to their tireless efforts, a settlement agreement in 2014 has already provided for the restoration of mauka-to-makai flow in all four of these fabled streams, for the first time in over a century – thereby supporting the restoration of stream and coastal ecosystems and native species habitat, increasing aquifer recharge, and enabling lo‘i kalo to be farmed once again.
A subsequent 2019 stipulation between the Hui o Nā Wai ʻEhā, Mahi Pono and OHA further established a limit on the amount of water that would be diverted for Mahi Pono’s diversified agriculture efforts in Central Maui. Yesterday’s decision and order marks yet another crucial development in the push for pono water management in Nā Wai ‘Ehā, as the Water Commission has now come to its conclusions on water use permit applications intended to provide an appropriate level of priority for Native Hawaiian kalo farmers and kuleana owners in the allocation of water from these streams.
While OHA’s staff and legal counsel are continuing to review the 400-page decision and order, I am heartened to understand that Native Hawaiian traditional and customary kalo cultivation has, for the very first time, expressly received priority in the allocation of water through the water use permit application process, and that traditional and customary practitioners will be fully recognized as such, without the limitations proposed in a previous draft of this decision and order. On the other hand, it is perplexing that the closure of the last sugar plantation on Maui did not result in the restoration of more water to the streams, especially given the 2019 stipulation with Mahi Pono to reduce its water use from Nā Wai ‘Ehā to a fraction of the water sought by its predecessor, HC&S.
In the coming days, OHA will be working closely with the community and with our legal counsel to assess opportunities to address any remaining concerns, and to best ensure that the benefits of this landmark decision are fully realized.
In the meantime, I would like to express my deepest and heartfelt gratitude to the Hui o Nā Wai ‘Ehā, who have fought for nearly two decades to hold the state and corporate stream diverters accountable under our constitution, laws and the public trust. I am also supremely grateful for the many legal practitioners, law students, historians, cultural experts, hydrologists, Water Commission staff and hearings officers and Water Commission members past and present who have helped us reach yesterday’s historic decision.
Ola i ka wai!