Water, water everywhere?

First annual Maui water resource forum: "e malama i ka wai"

Haleakala Times
December 18, 2007
by Helen Anne Schonwalter

Hawaiians defined wealth as ‘wai wai’; ‘wai’ means water. Among the other definitions of wai is – costly. If nothing else becomes apparent during this decade, both the preciousness and the costliness of water consumption and waste will gain prominence in Maui.

While Pacific islands (such as Tuvalu) are planning evacuations due to inundation, and storms plaguing the Pacific region with increased ferocity and frequency are wreaking havoc, we can no longer remain oblivious to the impact of our cumulative actions and inactions on our unique ecosystem in Maui. The five-year drought which resulted in the recent water rationing in Kihei and Upcountry is a part of this climate crisis.

With the expressed intention of raising awareness of the “complexities surrounding our island’s water resources... range of stakeholders and water users,” Chancellor Clyde Sakamoto, of UH-Maui Community College, hosted a two-day water forum at MCC. With Sustainable Living Institute of Maui (SLIM) among the sponsors of this event, attendees and others can be thankful for SLIM’s accessible web site providing background data, links to downloadable information that will enable all Maui residents to carry forward the efforts of the forum. (www.sustainablemaui.com).

The scope of the forum was grand. The organization of topics for Saturday’s panelists and speakers is telling. Starting with The Legal Backdrop of Water, moving to Ways Forward: Pathways to Partnerships on Maui and ending with Recovering Our Sense of Island Identity: Perspectives and Solutions, the forum provided background on the embroiled legal battles that have been waging for the past decade on customary/traditional (usufructuary) water rights; an emerging vision of community-based watershed stewardship; and practical, readily available solutions to recycle and reuse water to relieve the burden on our nearly depleted aquifers and often brackish or contaminated groundwater.

Maui is an island with a history of agricultural self-reliance and sustainable ecological principles known collectively as ahu pua‘a/aha moku concepts. Yet, sadly, the present water crisis Maui is facing (despite the downpour of the tropical storm we witnessed  ironically prior to and during the forum) only highlights the need to think anew and act anew in a post-plantation economy.

Honorable Judge Robert G. Klein gave historical data from the Great Mahele (1848) through the Territorial Supreme Court of 1860, underscoring the fact that the “ownership of water in natural water courses, streams and rivers remained in the people of Hawaii for their common good,”  which was determined by the konohiki (governor) when kuleana plots were still recognized by common law. 

Later, when sovereign lands were transferred to private hands, the customary water rights to taro growers (appurtenant or usufructuary rights) began to clash with prescriptive rights which pertains to leased water rights.  To make this legal quagmire even more complex, “the control of percolating surface and underground waters (waters in artesian basins) shifted to the State of Hawai‘i; giving the state supremacy over the county,” emphasized Judge Klein.

A case in point, the Mc Bryde vs. Robinson (1973) case in Kauai, where upstream and downstream users were at odds with one another, made it clear that both sides needed to join forces against the State of Hawai‘i which claimed rights to surface water.

Through several cases, notably the 2000 Waiahole I determination in O‘ahu, (regarding the auwai-ditch) where the Hawai‘i Supreme Court overturned the Water Commission Board’s decisions for the second time in 2004, and the Mc Bryde vs. Robinson case, the public has witnessed the disconnect between the business of regulating water rates and the myriad water users’ rights.


Reasonable use of water in the public trust
Throughout the discussion of the legal issues of water rights, the overriding question of reasonable use of water in the public trust challenges commercial agribusinesses’ ongoing diversion of water from East and West Maui streams. These post-plantation allocations are no longer necessary nor viable. “Private users carry the burden of proving that diversions are not a detriment to the public trust purpose,” said attorney Alan T. Murakami, one of the speakers at the forum.

Murakami, representing Hawaiian traditional taro land water user rights in the Wailuanui case (Ke‘anae and Wailua townships), Hawaiian Home Lands water rights, kuleana, (which may include fishpond and agricultural plots), and  as a member of the Review Commission has made recommendations to improve the administration of the State Water Code. Murakami said, “The record has been atrocious in regard to those plaintiffs who have had legal and superior rights.” In other words, “if a taro grower is using water in the time of the Mahele, (in his auwai and lo‘i), that should be enough evidence,” emphasized Murakami. Continuing, “Courts may revisit prior diversions to reallocate water if necessary to protect the Public Trust”, that is, traditional and customary water rights.
Hui Na Wai Eha, another community group (with the support of Maui Tomorrow and Earthjustice), has been demanding the protection and restoration of the four streams of Central Maui: North and South Waiehu, Waihe‘e, ‘Iao and Waikapu. (www.restorestreamflow.org)

John Duey, former owner of Duey Irrigation, Inc., now noni grower (West Maui Ag) at Makiwa, Ukumehame, is also President of Hui Na Wai ‘Eha which has petitioned the State Commission on Water Resource Management to enforce Hawaii’s State Law 174C. (This contested case is currently taking place from December 3 to 14.)
The Wailuanui Valley, Na Moku Aupuni O Ko‘olau, petitioned the state Board of Land and Natural Resources (BLNR) to restrict 30-year leases or permits on streams within the East Maui Irrigation District,  (EMI) including its tributaries. These permits, and others given to A&B, are revocable. The petition demands restoration of natural flows to 27 streams within these moku (districts). 

In regard to statutory constitutional mandates, if a water plan had been in place 20-30 years ago, the Office of Hawaiian Affairs (OHA) and others advocating for the return of ceded lands to kanaka maoli would not currently face the possibility of returning lands that no longer have sufficient flowing water, Jonathan Sheuer, Director of Land Management, OHA, intimated strongly.

While Duey is quite knowledgeable about the geology of water systems (hydrogeology), he is also adamant in his belief that the county should condemn private ownership of water ( for example, Wailuku Water Company) and return ownership to the county government.

Attorney Yvonne Y. Izu, former Deputy Director for the Commission on Water Resource Management answered the question from the audience, “Does the Water Code provide long-term mechanisms for agriculture meaning transitions to sustainable organic farming and energy crops?” Izu said, “The Water Code is there to implement the common vision; the state constitution doesn’t distinguish between small and large agricultural uses.”

This lack of distinction can be an impediment to the sustainability and slow food movements that are gaining momentum in Maui and elsewhere in the Hawaiian Islands. Furthermore, a new flexible water code is called for which encompasses technological changes to wastewater treatment and storm water capture.

Thus, the Na Wai Eha and the Wailuanui cases, which have challenged the BLNR “to take a new approach to stream flow allocation on a case-by-case basis...”  have long-term implications (Maui Tomorrow Newsletter, summer 2007).

Lucienne de Naie, Vice President of Maui Tomorrow, summed up one such implication in her question: “How much water needs to remain in streams after a particular request for water use has been calculated?” The East Maui Irrigation (EMI) comprising 33,000 acres of ceded lands, can allocate from160 mgd up to 450 mgd (million gallons per day). “EMI currently pays less than a penny per 1,000 gallons to use water in ‘the Public Trust’” said Jeffrey K. Eng, panelist with career experience in wastewater treatment and Master of Science degree from the University of Hawaii at Manoa.

Duey added, “at this time, we don’t even know when the water table below the rivers/streams is at a sustainable level.”

“When economic price supports are no longer available to agribusiness plantations, the allocation of water will be determined by a criteria of “(amount of) water needed when used  rather than on a 24-hour basis”, commented  Scheuer (OHA).

Finally, Murakami noted that “until this year, there has been no monitoring for violation of downstream appurtenant rights or riparian issues,” meaning the point and non-point source pollution of streams from
commercial/real estate uses.

What is at stake here is not only redressing old, legitimate  grievances of kanaka maoli, but restoring the health of the ecosystem which cannot speak for itself. A healthy riparian ecosystem has an abundance of endemic fauna: o‘opu, (goby fishes) ‘opae, (shrimp) hihiwai and hapawai (shellfish) and the algae these animals feed upon. The natural interaction between stream and coastal waters not only ensures biodiversity, but plays a part in the hydrologic cycle.

Conservation measures and biological solutions to water resource management – both innovative and historic – will be the focus of Part II of this feature, which will appear in the next issue of Haleakala Times.