Wailuku stream water issue heading toward showdown

The Maui News
Sunday, March 25, 2007
By HARRY EAGAR and EDWIN TANJI, Staff Writers

WAILUKU - About 30 people gathered at the Cameron Center Wednesday to prepare for a hearing scheduled for April 26 on a petition to designate the surface waters of Na Wai Eha - the four major streams draining from the West Maui Mountains to Central Maui.

Earthjustice, representing Hui O Na Wai Eha and Maui Tomorrow, has petitioned the State Commission on Water Resource Management to take control of surface water. The commission already has designated Iao aquifer's groundwater.

State designation of water resources is established under the State Water Code, Hawaii Revised Statute 174C, providing that the commission may take control when a scientific analysis determines that a water resource is threatened by current or proposed uses.

Earthjustice lawyer Isaac Moriwake reviewed the recent history of water law, emphasizing the precedent set by the Waiahole Ditch decision that had the Hawaii Supreme Court ordering return of surface waters from a plantation diversion system to streams in Windward Oahu.

Under the direction of the court, the water commission still is seeking to establish a formula for the amount of water that must be restored to the Waiahole-Waikane streams.

Moriwake said the Na Wai Eha petition could be of nearly equal consequence, in setting a precedent for a surface water system to be designated for state management.

John Duey, an officer of Hui O Na Wai Eha, said the April 26 commission hearing will be the last chance for the community to voice its views about the petition.

Moriwake said the commission is required by state law to determine instream flow standards in order to protect natural and cultural uses. However, he said, the "understaffed, underfunded" commission has not done so.

Later last week, the chief of the commission's surface water branch said the process of establishing permanent instream flow standards is difficult "because there is so much information that is required."

When the water code went into effect, the commission declared "interim instream stream flow standards" that effectively maintained all existing uses. But the code also requires the water commission to establish permanent standards that take into account the need for water in streams to protect habitat for fish and other water species, for maintenance of ecosystems including estuaries and wetlands, for protection of water quality and for protection of traditional and customary Hawaii rights.

The definition of an instream flow standard also requires the commission to consider "conveyance of irrigation and domestic water supplies to downstream points of diversion."

"The permanent instream flow standards will be more stringent, but they will be more difficult to establish. There will be mandatory agency reviews, and there is great deal of information that we will need to have. We need to know for any particular stream, who's using what, when and where," said Ed Sakoda, head of the Stream Protection and Management Branch.

With the Waiahole case, Sakoda said, a contested case is under way on a motion to revise the interim instream flow standard. The Na Wai Eha petition is on a similar track, although in a different form.

The Waiahole case involves a Supreme Court order on the commission's effort to determine how much water must be restored to the Waiahole-Waikane streams. Water that normally would go into the streams were diverted by a ditch system in the Koolau Range affecting four Windward Oahu streams from Kahana to Waiahole.

The Waiahole irrigation system supplied sugar fields in Central Oahu that all have been shut down. An element of the dispute involves questions of whether windward water should continue to be diverted for other uses that included a golf course as well as Central Oahu farms on the former sugar fields.

With the Na Wai Eha dispute, the Wailuku irrigation system still supplies sugar fields in Central Maui. As a historic user of the Wailuku irrigation system, the Hawaiian Commercial & Sugar Co. has vested rights to the Waihee-Wailuku water while the successor to Wailuku Sugar Co., the Wailuku Water Co., is seeking to retain its rights to water for its former sugar fields.

In their petition to designate the Waihee-Wailuku streams, Hui O Na Wai Eha and Maui Tomorrow are seeking to have the state commission take control of the irrigation system and determine the amounts of water that must be restored to the streams. One issue that the Na Wai Eha supporters raise is whether Wailuku Water Co. retains any rights since its historic use for sugar has ceased.

While both surface water issues are following similar paths in contested cases, Sakoda said they won't necessarily result in similar decisions on restoration of surface flows.

"It depends on what data is available," he said.

After Moriwake's presentation at the public meeting Wednesday, Council Member Michelle Anderson, who is chairwoman of the Water Resources Committee, said the surface water issue applies not just to Central Maui but to East and West Maui as well.

She said the days of plantation control of water are over.

"They just don't know it."