Questions Remain After Water Commission Issues Long-Awaited Decision on Nā Wai ʻEhā
Civil rights activist Martin Luther King Jr. once said, “the arc of the moral universe is long, but it bends toward justice.”
On June 28, the steadfast march of Maui kalo farmers fighting for justice in Hawaiʻi took an important step forward when the Hawaiʻi Commission on Water Resource Management (Commission) issued a long-awaited decision on the “Nā Wai ʻEhā Contested Case.”
The June decision, rendered by the Commission via a staggering 362-page document, offers them a partial victory.
Office of Hawaiian Affairs (OHA) Board Chair Carmen “Hulu” Lindsey noted that, “The recent decision, after 17 long years, finally vindicates the rights of many kalo farmers and cultural practitioners who have been seeking to obtain legal access to water as provided for under the constitution, water code, and public trust.
“The recognition of their rights may also help to set a precedent that clears the path for other communities to seek water management area designation and the vindication of their rights as well as that of the public interest in streams and aquifers that have been all but monopolized by private corporations for generations.”
However, Lindsey also noted that given the magnitude and complexity of the case, and the involvement of so many parties – from small-scale kalo farmers and gardeners to developers and other corporate landowners seeking a claim to the waters of Nā Wai ʻEhā – a handful of issues and concerns remain.
Indeed, despite the important step forward, upon reviewing the Commission’s decision, community advocates Hui o Nā Wai ʻEhā and their legal representative, Earthjustice, immediately expressed concern that, despite the priority given to subsistence farmers, the decision would not return enough water to Nā Wai ʻEhā streams.
According to Hui o Nā Wai ʻEhā President Hōkūao Pellegrino, “the Decision and Order (D&O) doesn’t go far enough to address the importance, implementation, and enforcement of Water Use Permits.”
In a surprise move, on June 30, just two days after the decision was released to the public, the Commission issued a 22-page amendment to the original decision.
Among other things, the amendment reduced the amount of water allocated to diversified agricultural company Mahi Pono in the original decision – from 15.65 million gallons per day (mgd) to 4.98125 mgd – despite a 2019 agreement between Mahi Pono, Hui o Nā Wai ʻEhā and OHA that Mahi Pono should receive 11.22 mgd.
Within short order, stakeholders filed various motions seeking clarification or partial reconsideration of the Commission’s filings.
The Struggle for Nā Wai ʻEhā
Nā Wai ʻEhā refers to Maui’s famed “Four Great Waters” – Waiheʻe River, Waiehu Stream, Wailuku River (previously known as ʻĪao Stream), and Waikapū Stream. The streams originate in Mauna Kahālāwai (West Maui Mountains), and this abundant area traditionally served as the primary ritual, political, and population center of the island.
In pre-contact Hawaiʻi, these streams were carefully managed. They provided an extensive wetland that supported one of the largest populations on the island of Maui. At the time of the Mahele in 1848, approximately 3,000 acres were under cultivation with more than 4,000 individual loʻi kalo. According to Native Planters in Old Hawai’i, it was the “largest continuous area of wetland kalo cultivation” in all of Hawaiʻi.
However, the establishment of sugar plantations on Maui in the 1860s resulted in a massive diversion of water from these streams to supply water for the plantations. Stream levels dropped dramatically, drying out the once-abundant wetlands, wreaking havoc on the ecosystem, and making it impossible for many Native Hawaiians farmers to continue to grow food for their families.
For more than 150 years, traditional farmers in the region have struggled to regain their rightful share of Maui’s precious water resources. And while there have been some gains, corporate agriculture’s monopoly on the water flowing from Nā Wai ʻEhā continued.
In 2003, kalo farmers and other community members formed Hui o Nā Wai ʻEhā in an effort to address the negative impacts caused by dewatering of the streams by corporations and to advocate for streamflow restoration. For nearly two decades they have fought through legal actions and administrative proceedings to protect and prioritize water access for loʻi and other subsistence farming.
In 2004, Hui o Nā Wai ʻEhā and Maui Tomorrow Foundation, both represented by nonprofit environmental law organization Earthjustice, petitioned the Commission to restore streamflow to Nā Wai ʻEhā, and subsequently filed a water waste complaint with photo documentation of diverted stream water being illegally dumped, rather than returned to the streams.
Then in 2006, the same organizations petitioned to establish a water management area that would provide greater state oversight in the use of waters from Nā Wai ʻEhā. This would lead to the designation of the first and only surface water management area in Hawaiʻi in 2008.
OHA, seeing the opportunity to restore mauka-to-makai stream flow and uphold the public trust in water – including Native Hawaiian rights protected under trust – joined in the legal proceedings, and would later provide funding to help kalo farmers and other water use applicants document and assert their rights to water in the newly designated water management area.
The legal battle dragged on for more than a decade, lasting through the 2016 closure of Hawaiian Commercial & Sugar Company (HC&S), and the acquisition of 41,000 acres of its former sugar lands by the continent-based Mahi Pono – which then replaced HC&S on their water permit application before the Commission.
In 2014, a historic settlement agreement was reached between the parties regarding the initial petition to restore streamflow to Nā Wai ʻEhā, whereby mauka-to-makai flow would be restored to all four waters for the first time in over a century. However, implementation of the agreement would continue to be a challenge, and the issue of who should receive water, and in what quantities, remained unresolved.
In 2019, after extensive vetting and negotiation, Mahi Pono, Hui o Nā Wai ʻEhā, and OHA announced that they had reached an agreement over Mahi Pono’s water usage, with Mahi Pono agreeing to a reduced water allocation – from the 36.29 mgd originally requested by previous landowner HC&S, down to 11.22 mgd.
Thirsty Sugar and Destructive Water Diversion
Sugar is one of the world’s “thirstiest” crops, needing much more water than other agricultural crops. Historical documentation shows that Hawaiʻi’s plantations needed as much as one ton of water to produce just one pound of refined sugar.
Maui was impacted early by the sugar industry. Foreign businessmen like Claus Spreckels and Charles Brewer (C. Brewer) gravitated towards Maui with its rich valleys and healthy freshwater streams. Settlers began to steer their financial resources and political influence towards building up agricultural activities on Maui and that would become the template for other plantations established throughout the pae ʻāina.
Modern mapping of the sugarcane lands in the 19th century shows the incredible intensity of land use that sugar production had in central Maui – activities that drew primarily from Nā Wai ʻEhā.
As the sugar industry grew, water diversions from Nā Wai ʻEhā and, later, East Maui’s watersheds increased. These increases caused corresponding adverse impacts to kuleana landowners and kalo farmers who also relied on the streams and rivers. The more water that was diverted for corporate farming, the less water that remained for subsistence farming.
The siphoning of so much water from Nā Wai ʻEhā also impacted native aquatic species historically present in the stream, including ʻoʻopu (endemic freshwater goby), hīhīwai (endemic freshwater snails), and ʻōpae (endemic freshwater shrimp). These species, once abundant food resources for the region, are now scarce.
Abundant freshwater flow is also critical to healthy nearshore coastal ecosystems like wetlands and fisheries. It also recharges our drinking water aquifers.
Greater Clarification Required
As Lindsey and others have noted, the Commission’s decision represents a historic and long-awaited step forward in the struggle of farmers and environmentalists to uphold the public trust – including Native Hawaiian rights protected under the trust – with regard to access to the water resources of Nā Wai ʻEhā, which may set a precedent for access to water resources throughout the pae ʻāina.
The decision is also historic in that it is the first time that the Native Hawaiian traditional and customary practice of kalo farming has been expressly recognized as meriting the highest priority in water use.
Another victory for kalo farmers was the rejection by the Commission of a proposal to allow larger diverters of water to reclaim “appurtenant water rights” (see sidebar). Had the Commission approved this proposal, it could have allowed large-scale landowners and “gentlemen estate” developers to start claiming huge amounts of water.
However, as noted previously, there are still concerns about the decision – for example, the confusion regarding the amount of water allocated to Mahi Pono, as cited earlier. Initially, they were allocated much more water than what they had agreed to receive – water that could be returned to the streams to support native species habitat, aquifer recharge, and other public benefits. Then in a reversal, the Commission dramatically decreased their allocation below previously negotiated levels.
Adds Pellegrino, “The Commission also continues to struggle with holding diverters like Wailuku Water Company accountable for providing the required amount of water to Native Hawaiian kuleana kalo farmers with appurtenant rights and who have priority use under the D&O. Twenty days after the D&O was issued, numerous Native Hawaiian kuleana loʻi kalo farmers in Waikapū were still without water and their crops have dried up and died.”
According to OHA Public Policy Manager Wayne Tanaka, another major and ongoing concern is that the Wailuku Country Estates, whose claimed appurtenant water rights were demonstrably extinguished, was nonetheless awarded a substantial amount of water based on these lost rights. Tanaka also has concerns about new requirements adopted in the final decision, that would require all appurtenant water right holders to submit their land deeds going back to the Mahele.
“A requirement like that would also place a significant burden on kalo farmers and others who have already established their appurtenant water rights through the contested case proceedings over the past 10 years,” explained Tanaka. “Producing over 150 years of deed history to re-validate their right to the water could take a year or more and cost these farmers thousands of dollars each.”
The lack of clarity surrounding these outstanding concerns must still be resolved, in accordance with the motions that were filed by OHA and other parties. At this time, it is not known how long this will take, or how the ongoing conflict will ultimately be resolved.
Despite these setbacks, the community remains steadfast and optimistic.
“We’re hopeful that we can work out these important fixes and avoid more twists and turns, including appeals,” said Pellegrino. “After 17 years, we can do better for our streams as well as for present and future generations who live and farm in Nā Wai ʻEhā.
“While a final decision may close the decade-long legal process, Hui o Nā Wai ʻEhā will continue to commit itself to advocating for our streams and kuleana kalo farmers, and ensuring the laws set forth are followed well into the future.”
For information about Hui o Nā Wai ʻEhā go to www.huionawaieha.org/ and for information about the legal battle go to earthjustice.org/features/background-on-na-wai-eha
What are “Appurtenant” Water Rights?
By Wayne Tanaka, OHA Public Policy Manager
Appurtenant water rights, also known as “appurtenant rights of kuleana and taro lands,” are expressly recognized in our constitution and state water code, and, along with Native Hawaiian traditional and customary practices and other “public trust purposes,” merit the highest consideration and priority in the allocation of our public trust water resources.
These rights are attached to kuleana and other lands in cultivation during the Mahele, and generally allow current landowners to make a claim for the amount of water that was being used on their land at the time it was originally converted into fee simple (i.e., during the Mahele).
The Hawai‘i Supreme Court has recognized and reaffirmed that these rights cannot be reserved by a landowner when selling their lands, and that these rights can be lost or extinguished if a sale of land “reserves” appurtenant water rights for the seller. Accordingly, the historical practice of large landowners trying to “reserve” their appurtenant water rights when selling their lands to developers or others effectively extinguished these rights.
The recent Nā Wai ‘Ehā Decision and Order (D&O) continues to recognize the priority that appurtenant water rights should have in allocating water from Nā Wai ‘Ehā, and also acknowledges the Hawai’i Supreme Court holding that these rights can be extinguished if landowners try to reserve them for themselves when selling their land.
However, questions remain as to why the D&O appears to award Wailuku Country Estates 6 million gallons per day, based on their claims to appurtenant rights that have already been shown to have been extinguished.
Even more questions remain as to why kalo farmers and others who have already established their appurtenant water rights during the decade-plus long contested case hearing must now produce deeds going back to the Mahele to prove that their rights were never extinguished.