On June 10, a majority of the water commission voted to restore less than a fifth of the streamflows to Waihe‘e and Waiehu and leave ‘Iao and Waikapu dry. This decision contradicted a proposal from the commission’s hearings officer to return about half of the streamflows to the four waters.
The amount restored, 12.5 million gallons per day (mgd), is even less than the 16.5 mgd figure that one of the major private diverters, Hawaiian Commercial & Sugar (HC&S), a sugar plantation owned by Alexander & Baldwin, Inc. (A&B), had thrown out as a last-ditch alternative to the proposed decision.
Commissioner Lawrence Miike, who presided as hearings officer over the extensive proceedings, criticized the majority for turning the state’s public trust responsibilities “on their heads” and leaving Na Wai ‘Eha with “leftovers” and “the least protection feasible or no protection at all.”
“The commission fudged its decision based on plantation politics, instead of following the law,” said Hui o Na Wai ‘Eha President John Duey. “Now, we must turn to the courts to uphold the law that flowing rivers and streams are a public trust, not a plantation plumbing system.”
“The commission failed the public trust and violated the Hawai‘i Constitution and Water Code, and we look forward to our day in court,” stated Irene Bowie, Executive Director of Maui Tomorrow.
Na Wai ‘Eha include two of the largest rivers on Maui, Waihe‘e and ‘Iao, and are legendary in Native Hawaiian culture for traditionally supporting a rich native aquatic ecosystem and the largest continuous area of wetland kalo or taro fields in the Hawaiian Islands. Currently, two private companies drain the streams dry: HC&S; and Wailuku Water Company (WWC), the remnant of C. Brewer & Co.’s former Wailuku Sugar plantation. Wailuku Sugar sold all its former farmlands for development and is now pursuing the business of selling the diverted stream water to the public.
The community groups initiated this legal action to restore streamflows to Na Wai ‘Eha more than six years ago, in June 2004. The community groups have sought to enforce the legal mandates the Hawai‘i Supreme Court established in its landmark Waiahole decision in 2000 in which the court strongly reaffirmed that flowing streams are a public trust, and that private diverters have the burden of justifying their diversions.
“If justice delayed is justice denied, a six-year wait for some leftover trickles is an insult to justice,” said Earthjustice attorney Isaac Moriwake. “We will not rest until justice, and the waters of Na Wai ‘Eha, flow for present and future generations.”