Ola I Ka Wai
Water is Life
by Lurline Wailana McGregor
I ka wā kahiko (in ancient times), before western contact in Hawaiʻi, there was no such thing as private ownership of the land or water or any other natural resource that gave life to the people. Such procreative forces were gifts from the gods. The aliʻi (chiefs) who were closest to the gods and therefore whose responsibility it was to take care of the people were the trustees, overseeing distribution and proper use of all such resources. Today, with competing demands for water, where is the balance between traditional practices that assure the perpetuation of the resources, and well-being of the people and modern needs? Perhaps even more importantly, who is enforcing fair distribution?
Prior to the arrival of Westerners, each land district, or ahupuaʻa, which ran from the mountain to the sea, sustained life through the ecological interdependence of mauka and makai lands. Streams flowing from the mountains to the sea provided a variety of oʻopu (fish), ʻopae (shrimp), and wī (mollusks) that sustained the people as well as assured rich fishing waters where the fresh water entered the ocean. Water was channeled into ʻauwai, hand-built irrigation ditches, to the agricultural fields below to grow kalo (taro) and other food staples and materials that sustained the community. The konohiki, or resource manager of the ahupuaʻa, assured fair distribution of the water. There were many rules for how water was apportioned; for example, a single ʻauwai could not take more than half of the flow of a stream. The needs of downstream users had to be respected always, and they could dismantle a dam if an upstream user was taking too much. As long as the kalo growers helped with the construction and maintenance of the ʻauwai and kept their fields productive, they were entitled to a proportionate share of the water to use.
Foreign ships started arriving in Hawaiʻi soon after Captain Cook landed in 1778 and charted Hawaiʻi on the world map. For the foreigners who came and stayed, the aliʻi often offered them land in exchange for their services. Realizing the commercial potential of their land, they started to pressure the king to allow private land ownership so they could pursue economic enterprises, their interest being primarily in growing sugarcane for export. Water, however, was a different matter. Despite what was happening with the ownership of the land, Kamehameha III (Kauikeaouli), issued a law in 1839, “Respecting Water for Irrigation,” to halt the diversion of water by those who were already taking more than their fair share. The law directed that water would be equally distributed, assuring it would be kept available for the common good. Even after Kamehameha III enacted the Mahele, which paved the way for the sale and private ownership of land, the Kuleana Act of 1850 guaranteed that kuleana, or tenant landowners, would always have access to water to be able to continue farming their lands.
This edict was ignored as the tremendous economic success of sugarcane during the second half of the nineteenth century increased the plantations’ need for more water, which was critical to their success. Under pressure from these landowners, the Hawaiian government authorized the use of government waters for their lands. Concurrently, western technology was making advances in engineering that improved the capacity and distance water could be transported from its source by tunnels, ditches, and flumes, resulting in the irrigation of lands that had previously been arid. In 1878, Alexander and Baldwin (A&B), who purchased the Central Maui lands to build one of the first modern diversion ditches, was able to divert about 80 million gallons of water a day from East Maui streams to Central Maui plantations. In recent times, the number of gallons A&B was diverting was closer to 132 million gallons per day. Over time, this reduced kalo production from several hundred acres to 20 acres in Central Maui.
Mahealani Wendt has been involved in restoring water to East Maui kalo farmers starting from the time she was the executive director of the Native Hawaiian Legal Corporation (NHLC) until today, now as the wife of an East Maui kalo farmer.
“Permission was given during Kingdom times to divert the waters, but there was also a caveat that you would never take so much that you would cause injury to the people who depended on it,” Wendt explains. “Over time I guess those promises were forgotten and diversion systems were made more and more efficient until every drop was taken.”
For over one hundred years, plantation owners held a monopoly on water throughout the islands, with various challenges to water rights being decided in the courts. It wasn’t until 1973, well after Hawaiʻi became the 50th U.S. state, that a case before the Hawaiʻi Supreme Court re-opened the larger question of water management in Hawaiʻi. McBryde Sugar Co. v Robinson dealt with one sugar grower filing a suit against another upstream grower in the same ahupuaʻa, each claiming that they owned the water.
Referring back to the historical treatment of water rights when Hawaiʻi was still a kingdom, the court, led by Chief Justice William Richardson, determined that all waters flowing in natural water courses belong to the sovereign, now the state of Hawaiʻi, in trusteeship for the people. Thus, there is no right of private ownership of water. Although the decision was challenged as revolutionary and unconstitutional and has still not been completely resolved, the public trust was upheld.
Notwithstanding appeals to the McBryde decision, the Hawaiʻi State Constitutional Convention of 1978 amended the Hawaiʻi State Constitution to provide for the creation of a state water management agency that would establish criteria for water use priorities. Before such an agency could be created, several issues had to be overcome, including county opposition to statewide control over water allocation and agreement on which state agency would oversee such a commission. Nine years later, in 1987, the Hawaiʻi State Legislature passed a State Water Code, which, among other provisions, created a six-member Commission on Water Resource Management (CWRM) under the State of Hawai‘i Department of Land and Natural Resources to administer the code. Kaleo Manuel, an environmental planner who was sworn in as deputy director of CWRM in February, 2019, administers and implements the state water code under the direction of the commission.
“The CWRM is responsible for all the public trust uses of water in streams, for stream health and biology and biota, including Native Hawaiian traditional and customary practices,” Manuel explains. “Balance and equity is often what is in contention. The old systems of water management still linger until today, (so) how do we shift into a new paradigm, one that takes into consideration climate change, balancing public trust uses, and making sure there’s mauka to makai flow? Those are things that come up in every decision before the commission.”
Harry Mitchell and Joyce Kainoa came to see Wendt at NHLC in the early 1990s asking for help when the Waiokamilo River, which provided water to their kalo patches and others in the community in Wailua, dried up as a result of an A&B decision to completely divert the river. “My advice to them was, if you’re going to take on this corporation, you need to organize yourselves so you can sustain a long fight because that’s what you’re going to have on your hands,” Wendt recalls.
Mitchell and Kainoa went back to their community and started organizing the residents. They formed a non-profit organization and were finally ready to move forward in 2001, at which time they filed 27 petitions to CWRM for the water of every one of the rivers to be returned to East Maui. “By this time, all the people had more awareness, and as stewards of their moku, felt obligated to do what they could,” says Wendt.
The last of the long-term leases that A&B held for the water rights on the streams they were diverting to their lands had ended in 1986. The community challenged their request for new long-term leases, also citing the need for environmental impact studies (EISs). As a result of the challenges to the new long-term lease applications, the Board of Land and Natural Resources deferred them and instead issued month-to-month revocable permits that required no scrutiny or EIS’s, despite a court ruling in 2003 requiring an environmental assessment be performed before any water use leases are issued. In the meantime, sugar production had all but ended, yet the leases continued to be extended.
After setting Interim Instream Flow Standards (IIFS) that limited diversions, CWRM issued a decision in June of 2018 that A&B’s subsidiary, the East Maui Irrigation Company, would have to end the diversions of water from the East Maui watershed. Seventeen years after the first East Maui petitions were filed, 10 streams that previously flowed into East Maui and traditionally supported kalo cultivation were fully restored, and seven streams would have no or limited diversions to restore habitats.
CWRM is continuing to review the modification of other streams. “There are a number of other jurisdictions that are involved, for example the State Department of Health, the Environmental Protection Agency, and the Army Corps of Engineers,” says Manuel. “While needing to assure protection of mauka to makai flow, we want to make sure farmers have the water they need for kalo farming, (and) there also has to be an opportunity for agriculture in the future.”
As of early 2019, no long-term water lease has been issued, and all current leases, known as holdovers, are renewed annually. Legislation is moving through the Hawaiʻi State Legislature that would authorize holdover leases annually for up to ten years until the pending application for the disposition of water rights is finally resolved. The community is divided on the issue. Maui County and corporate water holders support the bill and the importance of assuring that agricultural interests, both current and future, will have access to water. Mahi Pono LLC, for example, which recently acquired approximately 41,000 acres of A&B’s former sugar plantation lands, is in the process of developing a plan for diversified agriculture on its Central Maui lands. Diversified agriculture needs less than half the water of sugarcane. Those opposed to the bill say that it is a violation of the public trust to continue to enable the lease holders who have not yet done an environmental assessment.
“I honor the community in its frustration for the time it’s taken for action to happen. I honor both sides of this. It’s been a long time since streams have been diverted, but we are in a transition, and it takes time,” says Manuel. He also notes that now that the interim in-stream flow was determined by the commission’s decision on East Maui rivers last year, corporations that have diverted water from those streams have progressed with their environmental assessments.
There are other permitting and water distribution battles on Maui and throughout the state that have not yet been resolved. D. Kapua‘ala Sproat, University of Hawaiʻi associate professor and director of the Ka Huli Ao Center for Excellence in Native Hawaiian Law at the William S. Richardson School of Law, has been involved with water rights in West Maui for years. Nā Wai ʻEhā, the four rivers in West Maui that include the Waiheʻe, Waiehu, Wailuku (ʻĪao), and Waikapū, were once legendary for their abundant water that supported the largest contiguous area of wetland kalo cultivation of all the islands, allowing the community to thrive. Like many other streams on the island, these streams became little more than a trickle after sugar plantation owners diverted them. Yet, with the closing of the plantations, the water has not been restored.
The Wailuku Sugar Company became the Wailuku Water Company in 2004 after sugarcane was no longer grown on its lands, and started selling its water diversions to the community rather than returning it to the streams. “The community actually actively petitioned the Commission (CWRM) because they wanted the water permitted,” says Sproat, who was involved with helping the community with their petition when she was working previously at Earthjustice. The prices that Wailuku Water Company were charging the residents were inordinately high. The petition was successful, and as a result, a permitting process was devised. The diverted waters of Nā Wai ʻEhā are the only surface water management area in all of Hawaiʻi, and this marks the first time ever that water use permits are being issued in general, including for traditional and customary Native Hawaiian rights.
“This means that all allocation of water use permits has to come through CWRM,” says Manuel. “The CWRM is still in the process of coming up with an initial ʻfinding of fact’ draft, which is before the commission for review now. No decision has been made yet.”
As the community awaits CWRM’s decision, Sproat states that “the permitting procedures in Nā Wai ʻEhā going on now will be determined by CJ [Chief Justice] Richardson’s vision of water in the public trust, and how it’s going to be accounted for or not. How the laws have been defined by our indigenous traditions is one thing; how that comes to life on the ground and in the community is totally another, and the decision-makers will have to have the will and guts to do what it requires.”
Manuel is optimistic, based on the progress seen since CWRM was established to implement the state water code. “From a planning perspective, the overall framework in which we manage water had to be created, taking into account new trends, new case law, new scientific models, and changes in the environment,” he says. CWRM is collecting data through a monitoring program, improving relations and communication with partners, and exploring instream flow standards: how much water needs to remain in the streams before diversions are allowed.
Manuel notes, “We’re in a transition as an island, as the state of Hawaiʻi, and on a global level as we work through these issues, and with climate change. We need to make balanced decisions about water resources. Compared to a decade or two ago, communities across Hawaiʻi are more aware of their rights to water and are active in promoting their needs. Thus, we now as a state government, are acting to show that water flow from mauka to makai is important, in streams and underground, not just for esthetics but for supporting our protected public trust uses of water.”
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