Victory for Public Rights in Water Resources in Hawai`i
State designates the "Four Waters" of Maui for public management
Isaac Moriwake, Earthjustice, (808) 599-2436, ext. 613
The Commission on Water Resources Management of the State of Hawai`i, has decided in a unanimous vote to designate Na Wai `Eha — the “Four Waters” of Waikapu, `Iao and Waiehu Streams and Waihe`e River on the island of Maui — as a “water management area” under the state Water Code. The designation, effective once public notice is published, puts the commission in direct control of the waters of Na Wai `Eha, allowing water use only by commission permit. The commission’s decision acted upon a petition filed in December 2006 by public-interest environmental law firm Earthjustice on behalf of two Maui grassroots community groups, Hui o Na Wai `Eha and Maui Tomorrow Foundation.
Designation of Na Wai `Eha marks a significant milestone in an ongoing battle over water resources that has unfolded for years in this region, as well as in many other communities across the state. Na Wai `Eha are perennial streams that traditionally supported a rich native aquatic ecosystem and the largest continuous area of taro production in the Hawaiian Islands. But large-scale diversions by sugar plantations have drained the streams dry for over a century and continue unchecked despite the modern decline of the sugar industry.
“For too long, a few companies have treated Na Wai `Eha stream flows as their private property, while public instream uses have gone ignored,” said John Duey, longtime resident of `Iao Valley and President of Hui o Na Wai `Eha. “Now the Water Commission will be able to monitor and regulate water uses and ensure they are truly in the public interest.”
Since the plantation era, two companies have controlled most of the stream flows of Na Wai `Eha: Hawaiian Commercial & Sugar (HC&S), a division of Alexander & Baldwin (A&B), which operates one of the last sugar plantations in Hawai`i on Maui’s central plain; and Wailuku Water Company (WWC), formerly the Wailuku Sugar plantation, which sold off all its former agricultural lands for development and is now pursuing the business of selling water.
The designation of Na Wai `Eha means that these and other present and prospective offstream water users must apply to the commission for a use permit. While present users of Na Wai `Eha have a one-year window to apply for “existing uses,” by law those uses are not grandfathered.
In deciding to designate, the commission emphasized the “serious disputes” over the region’s water resources. During the commission’s multi-step process extending over a year, numerous parties expressed their strong support for state control, including dozens of community members, the Office of Hawaiian Affairs, and the former and present mayors and water directors and the entire County Council of the County of Maui.
“We’re proud to be a part of this collective effort to achieve the first-ever designation of streams for public management,” said Irene Bowie, Executive Director of Maui Tomorrow. “Hopefully this will lead to similar progress for the many other streams and communities statewide needing proper stewardship.”
The battle over Na Wai `Eha in recent times began in 2001 with action by Earthjustice and its clients to designate the ground water of the `Iao Aquifer, which underlies much of Na Wai `Eha and serves as the principal source of drinking water for Maui. In June 2004, Earthjustice filed a petition to amend the instream flow standards (IFS) of Na Wai `Eha, seeking to restore instream flows for a host of ecological and cultural purposes such as supporting native stream life and cultivation of the Native Hawaiian staple, taro. The commission held an extensive administrative trial on the IFS petition from December 2007 to March 2008 and should issue a decision on the IFS later this year.
The permitting process resulting from the designation of Na Wai `Eha will provide additional scrutiny of the companies’ offstream water diversions.
“Designation is a critical step in public management of the precious waters of Na Wai `Eha,” said Isaac Moriwake, an attorney with Earthjustice. “But it is only an initial step. We must remain vigilant to ensure that the many community members living in these valleys are empowered to have their water needs recognized, and that the precious waters of Na Wai `Eha are used justly for the benefit of all the people, not just a handful of private interests.”
The decision to designate Na Wai `Eha is the first time the state has designated streams as a WMA. Since its establishment in 1987, the commission has only designated ground water for public management on Moloka`i and portions of O`ahu and Maui. Numerous cases have stemmed from the designations on O`ahu and Moloka`i, including the litigation over the water diverted by the Waiahole Ditch on O`ahu, which produced the famous Waiahole decision of the Hawai`i Supreme Court strongly reaffirming the principle of water resources as a public trust for the benefit for present and future generations.
“This is a fight worth fighting — starting from each of our individual communities and reaching across the islands,” said Duey.
Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people's health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.