NĀ WAI ʻEHĀ DECISION & ORDER ENSURES WATER FOR TRADITIONAL AND CUSTOMARY PRACTICES
News Release from DLNR, Jun 29, 2021 (Scroll down for OHA & EarthJustice statements)
(HONOLULU) – Nā Wai ʻEhā encompasses the “four great waters” of west Maui: Waihe’e, Waiehu, Wailuku, and Waikapū. The Hawai‘i Commission on Water Resources Management (CWRM) announces, after more than two decades of conflict, the most comprehensive application of the Hawai‘i Water Code to water use and protection in history.
20-plus years of legal proceedings are now settled in a formal and lengthy Decision and Order (D&O), which for the first time recognizes appurtenant rights to west Maui waters, including setting aside sufficient supply for traditional taro farming and other traditional and customary practices. The D&O is a result of a lengthy and complicated Contested Case Hearing that synthesizes voluminous evidence in what was a multi-faceted proceeding.
“This order works to establish a new paradigm for water resource management and collaboration in Nā Wai ʻEhā.We affirmed that kalo cultivation is a traditional and customary right in this region, recognized appurtenant rights to wai (water), and ensured connectivity of streams to enhance biota and ecosystem services. We also provided water for sustainable agriculture in Maui and required updated real-time metering of large-scale water diversions to enhance management and collaboration,” said water commissioner Dr. Kamanamaikalani Beamer.
The decision is a key shift from plantation water management to balanced water management. CWRM Deputy Kaleo Manuel commented, “The wai of Nā Wai ʻEhā have been a source of conflict since plantation diversions emptied streams decades ago. It has taken two decades to fully settle these complex matters which often strained relationships between instream users like kuleana tenants and mahi ‘ai kalo and offstream users and stream diverters. CWRM staff and the commission are extremely appreciative of all the stakeholders and their dedication, passion and patience.”
Manuel describes the commission’s deliberations as lengthy and comprehensive. The D&O documents the legal record, analysis, and more than 1,000 determinations that resulted in 116 recognized appurtenant rights and 176 permits. “The D&O establishes Interim Instream Flow Standards (IIFS) and Surface Water Use Permit Applications (SWUPA) allocations that balance the commission’s public trust responsibilities,” he added.
Aggregate water allocations for Nā Wai ʻEhā include:
More than one-half of available stream flows allocated to protect instream habitat and related benefits.
Approximately 14% of the water for kalo production.
About 1/3 of the water for beneficial offstream uses, such as municipal water supply and diversified agriculture.
In addition to retaining over half of stream flows for habitat, the commission is permitting over 23-million-gallons a day for other uses.
Water Commission Chair Suzanne Case said, “Our goal was three-pronged: The commission strove to 1) honor past mediated settlements and Supreme Court rulings; 2) establish stream flows required to offer a higher degree of habitat protection; and 3) provide sufficient divertible flow to meet public trust and other reasonable and beneficial uses.”
“We recognize that the intended outcomes, implementation, and enforcement will rely on a high level of continued collaboration among competing interests. For example, in times of drought, all water users will need to share equally and equitably what are likely to be lower stream flows, resulting in less available water.”
The Nā Wai ʻEhā Contested Case Executive Summary is attached, along with the graphics above and a map of Nā Wai ʻEhā.
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STATEMENT FROM OHA BOARD CHAIR CARMEN “HULU” LINDSEY ON NĀ WAI ʻEHĀ CONTESTED CASE HEARING FINAL DECISION AND ORDER
News Release from OHA, June 29, 2021
Yesterday’s Nā Wai ʻEhā decision and order represents a historic and long-awaited step in the ongoing struggle to uphold the public trust, including Native Hawaiian rights protected under the trust, in the water resources of Nā Wai ʻEhā and throughout our islands.
For 17 years, farmers and community members have fought to restore stream flow to Nā Wai ‘Ehā, and to secure their rightful access to water necessary for the cultivation of lo‘i kalo and other crops in what was once regarded as the agricultural “breadbasket” of Maui’s largest population center. Thanks to their tireless efforts, a settlement agreement in 2014 has already provided for the restoration of mauka-to-makai flow in all four of these fabled streams, for the first time in over a century – thereby supporting the restoration of stream and coastal ecosystems and native species habitat, increasing aquifer recharge, and enabling lo‘i kalo to be farmed once again.
A subsequent 2019 stipulation between the Hui o Nā Wai ʻEhā, Mahi Pono and OHA further established a limit on the amount of water that would be diverted for Mahi Pono’s diversified agriculture efforts in Central Maui. Yesterday’s decision and order marks yet another crucial development in the push for pono water management in Nā Wai ‘Ehā, as the Water Commission has now come to its conclusions on water use permit applications intended to provide an appropriate level of priority for Native Hawaiian kalo farmers and kuleana owners in the allocation of water from these streams.
While OHA’s staff and legal counsel are continuing to review the 400-page decision and order, I am heartened to understand that Native Hawaiian traditional and customary kalo cultivation has, for the very first time, expressly received priority in the allocation of water through the water use permit application process, and that traditional and customary practitioners will be fully recognized as such, without the limitations proposed in a previous draft of this decision and order. On the other hand, it is perplexing that the closure of the last sugar plantation on Maui did not result in the restoration of more water to the streams, especially given the 2019 stipulation with Mahi Pono to reduce its water use from Nā Wai ‘Ehā to a fraction of the water sought by its predecessor, HC&S.
In the coming days, OHA will be working closely with the community and with our legal counsel to assess opportunities to address any remaining concerns, and to best ensure that the benefits of this landmark decision are fully realized.
In the meantime, I would like to express my deepest and heartfelt gratitude to the Hui o Nā Wai ‘Ehā, who have fought for nearly two decades to hold the state and corporate stream diverters accountable under our constitution, laws and the public trust. I am also supremely grateful for the many legal practitioners, law students, historians, cultural experts, hydrologists, Water Commission staff and hearings officers and Water Commission members past and present who have helped us reach yesterday’s historic decision.
Ola i ka wai!
Read the Final Nā Wai ʻEhā (NWE) Contested Case Executive Summary here. See the full NWE case here.
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HAWAI‘I WATER COMMISSION ISSUES HISTORIC DECISION ON MAUI’S “FOUR GREAT WATERS”
Community groups flag concerns on further corrections and improvements needed
News Release from EarthJustice, June 29, 2021
Honolulu, HI – Yesterday, the Hawai‘i State Commission on Water Resource Management issued a historic decision in the long-running legal battle over the stream flows of Nā Wai ‘Ehā, Maui’s “Four Great Waters.” The 362-page decision, the most comprehensive ruling on water rights in Hawai‘i’s history, implements a new system for protecting and managing stream flows and reversing the ecological and cultural harms of Maui’s plantation past. But Maui community groups Hui o Nā Wai ‘Ehā and Maui Tomorrow Foundation, who started this legal action 17 years ago to restore Nā Wai ‘Ehā stream flows diverted by plantations for 150 years, are expressing concerns about key parts of the decision they are hoping can be clarified or improved.
“Hui o Nā Wai ‘Ehā would like to express our appreciation to the Commission for its work on the decision, as well as to all the Nā Wai ‘Ehā community members and supporters for their steadfast commitment, patience, and tireless work throughout this 17-year journey,” said Hōkūao Pellegrino, President of Hui o Nā Wai ‘Ehā. “Unfortunately, we are concerned and disappointed with some key parts of the decision. These include a number of oversights in allocating too much water to several big diverters, while restoring little or no flows to Nā Wai ‘Ehā streams even though the closure of Hawaiian Commercial & Sugar Company in 2016 should allow much more water to be returned.”
The Commission’s final decision corrected several basic legal errors on traditional water rights in the hearings officer’s proposed decision and recognized the priority rights of Native Hawaiian community members, many of whom have lived on and farmed their lands for generations. But the decision did not also take the opportunity to restore more stream flows after the close of the HC&S plantation, leaving the streams at around the same flow levels previously set in 2014, while the company was in full operation.
“We thank the Commission for its hard work on the final decision, which included important corrections on the legal priorities for water rights,” said Earthjustice attorney Isaac Moriwake, who has litigated the Nā Wai ‘Ehā case on behalf of the community groups over its 17-year duration. “It seems some additional work and corrections are still needed to ensure this landmark decision does justice to the hard work from the community for almost two decades, and the monumental importance of the case for generations to come. We can truly restore Nā Wai ‘Ehā and turn the page on Maui’s plantation-era water diversions.”
The Commission’s decision is the most comprehensive, top-to-bottom adjudication of water rights in Hawai‘i history, combining the determination of mandated instream flow levels with the issuance of permits for every user of Nā Wai ‘Ehā stream water. It is being looked to as a model for the comprehensive management of water resources under the public trust after the plantation era.
The case previously went to the Hawai‘i Supreme Court, which ruled in 2012 that the Commission violated the law for failing to protect public and Native Hawaiian rights to flowing rivers and streams. In 2014, a historic settlement restored continuous flow to all four of Nā Wai ‘Ehā for the first time in 150 years.
After the closure of HC&S in 2017, the community groups initiated further legal action to restore more stream flows to Nā Wai ‘Ehā, since the plantation had used 80 percent of the water to cultivate water-intensive sugar crops. Currently, the main diverters of Nā Wai ‘Ehā water are Mahi Pono, the company that bought the former HC&S agricultural lands, and Wailuku Water Company, a former plantation company that sold off its agricultural lands to developers and is now in the business of selling diverted stream water to the public.
One of the oversights that the community groups has identified in the decision involves the Commission granting Mahi Pono far more water than the amount that both the community groups and Mahi Pono agreed should be allocated in a joint settlement and stipulation the parties submitted during the closing arguments before the Commission in November 2019.
“We’re hopeful that we can work out these important fixes and avoid more twists and turns including appeals,” said Pellegrino. “After 17 years of carrying this case to this point, we can do better for our streams as well as for present and future generations who live and farm in Nā Wai ‘Ehā.”
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Earthjustice is the nation’s leading non-profit environmental law firm. The Mid-Pacific Office opened in Honolulu in 1988 and represents environmental, Native Hawaiian, and community organizations. Earthjustice is the only non-profit environmental law firm in Hawai‘i and the Mid-Pacific and does not charge clients for its services.
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