The Hawaiʻi Supreme Court has ordered the state water commission to reconsider the fate of Nā Wai ʻEhā, or “The Four Great Waters” of Waiheʻe River and Waiehu, ʻĪao, and Waikapū Streams on Maui. Yesterday, the court found that the water commission’s June 2010 decision to restore little or none of the stream flows currently diverted by two private companies was lacking on every key point. The court ruled the commission failed to give proper consideration to Native Hawaiians’ and the public’s rights to flowing streams. The court also ruled the commission needed to further pursue available alternatives to draining the streams such as using non-potable wells and recycled wastewater and eliminating waste.
Above: ʻIao Stream flowing naturally above all diversions
at the ʻĪao Needle State Park.
Below: Bone-dry ʻĪao Stream, downstream of diversions.
The court sent the case back to the commission to redo its decision, opining: “Where the Commission’s decision making does not display a level of openness, diligence, and foresight commensurate with the high priority these [public trust] rights command under the laws of our state, the decision cannot stand.” Four of the five justices issued the court’s opinion, while Justice Acoba wrote a separate concurring opinion reiterating that the commission failed to meet its public trust duties.
Maui community groups Hui o Nā Wai ʻEhā and Maui Tomorrow Foundation, represented by Earthjustice, and the Office of Hawaiian Affairs appealed in July 2010. A majority of the commission issued the decision over the dissent of former Commissioner Lawrence Miike, who sat as hearings officer over the entire case. The commission majority reversed Miike’s recommendations to restore around half of the approximately 70 million gallons a day (mgd) diverted, and instead restored only 12.5 mgd and left two of the four streams dry.
“When I look at ʻĪao and Waikapū Streams, they’re bone-dry, nothing but skeletal remains,” said Rose Marie Hoʻoululāhui Lindsey Duey of Hui o Nā Wai ʻEhā. “The supreme court’s decision restores my hope that the law stands for something, and that each of Nā Wai ʻEhā's four streams will flow like justice from mauka (mountain) to makai (ocean).”
“We’re uplifted by the court’s ruling and look forward to a more pono (just) decision from the commission,” said Irene Bowie, executive director of Maui Tomorrow Foundation. “This is a historic victory upholding Hawaiʻi’s public trust doctrine, and we stand in solidarity with all who have worked so hard, throughout Hawaiʻi, to defend our public water resources.”
Nā Wai ʻEhā include two of the largest rivers on Maui, Waiheʻe and ʻĪao, 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. Two private companies divert the streams: Wailuku Water Company, the remnant of the former Wailuku Sugar plantation; and sugar plantation Hawaiian Commercial & Sugar. 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 have sought to enforce the legal mandates the Hawaiʻi Supreme Court established in its landmark Waiāhole decision in 2000, in which the court strongly reaffirmed that flowing streams are a public trust. As in this case, the Waiāhole case involved local community groups fighting for lasting protection for rivers and streams in the face of private companies continuing plantation-era diversions for industrial agriculture and future urban development.
In this appeal, the state and companies not only defended the restoration of minimal or no flows, but even argued that the court had no jurisdiction, and the public had no right, to enforce the public trust. The court flatly rejected that argument. It then went on to rule that the commission failed in its duty to consider the impacts of the companies’ diversions on Native Hawaiian cultural practices and public instream uses and “violated the public trust” in its deficient treatment of the diversions and sensible alternatives.
“The court has again sent a strong message that flowing rivers and streams are a public trust, not a plantation plumbing system,” said Earthjustice attorney Isaac Moriwake. “We will not rest until the waters of Nā Wai ʻEhā flow for present and future generations.”