Case Number # 2474
Earthjustice on behalf of community group Po‘ai Wai Ola / West Kauaʻi Watershed Alliance has brought legal action to protect the “Grand Canyon of the Pacific” and restore stream flows to the Waimea River on Kauaʻi. The case before the State of Hawaiʻi’s Commission on Water Resource Management charges the state-run Agribusiness Development Corporation and its tenant the Kekaha Agricultural Association, which operate the old sugar plantation ditch systems diverting Waimea River, of excessively draining the river and even dumping the water, rather than letting the river flow for the environment and public uses.
Although the former Kekaha Sugar plantation closed in 2001, vastly decreasing the need for diversions, the large-scale dewatering of Waimea River still continues. The complaint reveals the diverters dumping water into gullies and over cliffs, instead of leaving it in the river.
Waimea River carves through the Waimea Canyon, renowned as the “Grand Canyon of the Pacific.” One of the largest rivers in the state, it traditionally supported a legendary native stream ecosystem and Hawaiian community from the delta and through the canyon. This changed in the early 20th century when Kekaha Sugar constructed the Kekaha and Kōkeʻe ditch systems to take around 50 million gallons of day for 7,300 acres of thirsty sugar cane fields.
Hawaiʻi law, including the state constitution and Water Code, establishes that fresh water resources like flowing streams and rivers are a public trust, which the state is obligated to protect and restore. The Commission, by law, must adopt instream flow standards (“IFS”) to protect instream public trust uses of water, including maintenance of fish and wildlife habitats, recreational uses, and Native Hawaiian traditional and customary rights. The IFS sets the minimum amount of water that must flow in the river or stream.
As with many rivers and streams across the state, the IFS for Waimea River simply “rubber-stamped” the level of diversions when the plantation was taking all the water, which neither reflects current conditions, nor adequately protects public uses of the river.
Poʻai Wai Olaʻs legal action seeks to increase the IFS for the Waimea River system and end the excessive and wasteful diversions. The petition parallels legal actions other community groups have taken across the state. These include the ongoing Nā Wai ʻEha case on Maui, in which community groups received a favorable ruling from the Hawaiʻi Supreme Court last year, and the Waiāhole case on Oʻahu, in which the court issued a landmark opinion in 2000 strongly affirming public trust protections for water resources.