By Loke Aloua, Ashley K. Obrey, and Jonathan Likeke Scheuer
Since the Lahaina fires, our lāhui is increasingly aware of the Commission on Water Resource Management’s (CWRM) legal duties to protect the public trust of water, including Native Hawaiian rights.
But Maui Komohana is not the only community that has been waiting for CWRM action. For decades, the kupa of North Kona, on Hawaiʻi Island, have asked for protection of their water.
Instead, CWRM is working to permit accelerated groundwater extraction for new developments. This planned exploitation comes even as we are experiencing historic and, perhaps, permanent droughts across Hawaiʻi. We are living now in Ka Wā o ka Wai – the time of water. How will we respond?
Decades of pleas to protect wai
Dry on its surface, the northern part of North Kona was known as Kekaha wai ʻole o nā Kona. Underground, however, water sustains ecosystems, practices, and communities ma uka to ma kai.
Since the 1970s development boom, Kona groundwater has been exploited with almost no regard for traditional uses. While developers have benefited financially, the landscape and community have paid the price.
Kūpuna warned us. When Congress created Kaloko-Honokōhau National Historic Park, it mandated that the National Park Service (NPS) manage it in accordance with the 1974 “Spirit Report.” Prepared by a Native Hawaiian advisory committee, it declared “good water quality is essential to fishpond culture, and since the source is almost entirely in the rainy ma uka areas, management of these and other lands adjacent to the park will have a direct impact on water resources within the park” and “cooperative planning efforts with the state, county, and private landowners is an important part of this proposal.”
The state and county ignored this warning, and our kūpuna were proven right.
In 2014, Kona native Herbert Kai testified his ʻohana once practiced fishing, gathering, drinking and bathing practices but “flowing fresh water, fresh water springs, brackish water pools, and ʻōpae ʻula are gone – or at least not easy to find; they’ve been slowly diminishing.”
After years of fruitless conversations, in 2013, the NPS petitioned CWRM to designate the Keauhou Aquifer System as a groundwater management area which requires water development decisions be made in public and include processes to protect Hawaiian rights.
Unfortunately, that designation was aggressively opposed by developers and the County of Hawaiʻi. The 60-day designation process was dragged out over three years. Ultimately, CWRM denied the petition, agreeing with a recommendation written by staff who now work for water development consultants.
A failed “new approach”
When CWRM denied the petition, it attempted to meet its public trust duties by imposing a requirement to review impacts on cultural practices from new wells – a supposed “new approach.”
The “Ota Well” was the first well proposed after that. The applicants were two state agencies working with private developers seeking to build market rate housing and an industrial park.
Disregarding CWRM’s promise to review cultural impacts, in 2021, staff recommended approval of the Ota Well permit requiring only a symposium to “discuss traditional and customary practices.”
CWRM rejected the recommendation after community opposition and instead directed staff to analyze cultural impacts. Consultation with stakeholders resulted in proposed permit conditions to address those impacts. For a moment, it seemed that the “new approach” would work.
Unfortunately, in 2022, the applicants opposed the conditions and requested a contested case hearing on their own application. After stalling, the applicants returned in 2024 to amend the conditions. A hui of kiaʻi loko iʻa (fishpond protectors) and lawaiʻa (fishers) secured a promise from CWRM to instead synthesize hydrological data to better understand current impacts on groundwater-dependent ecosystems and cultural practices along the coast.
A “new” new approach?
Ignoring that promise, this year CWRM instead proposed another new “solution” – an adaptive management plan (AMP). While it looked good from afar, it was far from good.
CWRM initially tied the AMP’s approval to the Ota Well construction permit, which was adamantly opposed by the community. It proposed only monitoring conditions while allowing unlimited new wells to go into production and ignored evidence of existing impacts to groundwater-dependent ecosystems. It also promised theoretical future management actions but never addressed how such management could be enforced in this non-designated area.
When the AMP was discussed in July, Commissioners Lawrence Miike and Aurora Kagawa-Viviani questioned CWRM’s regulatory power to enforce it. Deputy Director Ciara Kahahane admitted “there’s not much we can do besides ask nicely.” Miike stated, “I just think it’s nuts . . . Why don’t we just designate the area already?” Chairperson Dawn Chang voiced agreement.
As of September, commissioners’ comments on designation have been ignored. Little progress has been made on the AMP. Members of the AMP’s cultural expert group have not been identified – though CWRM readily identified anti-designation scientists to participate. Meanwhile, there are a dozen wells waiting to be developed without any meaningful safeguards in place for Kona’s wai.
Today’s decisions determine the future of Hawaiʻi’s public trust resources. Communities across the pae ʻāina are experiencing the trifecta of extreme drought, over-extraction, and passive management.
In Kekaha wai ʻole, the community is left carrying the burden to protect the water that gives life to Kona’s people. How will we and CWRM ʻauamo the kuleana of Ka Wā o ka Wai? Will the state continue to ignore its duties, or will it stand with community to protect water and native rights?
For AMP updates or to provide feedback go to: dlnr.hawaii.gov/cwrm/planning/Keauhou-amp. To subscribe to CWRM’s monthly meeting notices and track their activities, email dlnr.cwrm@hawaii.gov.
Loke Aloua is a kiaʻi loko iʻa at Kaloko Fishpond, the poʻo of Hui Ola ka Wai and Hui Kaloko-Honokōhau, and a kupa of Kona. Ashley K. Obrey, Esq., is a senior staff attorney at the Native Hawaiian Legal Corporation. Based in Kona, a significant portion of her legal practice is dedicated to advocating for Native Hawaiian water rights. Dr. Jonathan Likeke Scheuer is the principal of Kahālāwai Consulting. He works with clients embroiled in environmental conflict to seek shared, sustainable prosperity for the communities and the ʻāina involved.
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