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Fight over water's flow

A community group wants to restore four streams that have been diverted to feed sugar cane fields

By Nanea Kalani

LAST UPDATED: 4:01 a.m. HST, Sep 8, 2013

IAO VALLEY >> John Duey gazes out over the parched Wailuku River streambed, a look of despair welling in his eyes.

He's standing atop a narrow metal bridge that crosses the stream above Kepaniwai Park.

The stream quietly trickles past large river rocks bleached gray by sunlight in stark contrast to the dark, mossy rocks farther upstream.

On most days, the water comes to a near halt about 1,000 feet upstream. Enough water to fill about 90 Olympic-sized swimming pools, about 60 million gallons, is intercepted each day by an intake system built more than a century ago to deliver water to thirsty sugar cane fields in the arid Central Valley.

Duey heads a community group that since 2004 has been engaged in a legal battle over access to water from the Waikapu, Waiehu, Waihee and Wailuku rivers, collectively known as Na Wai 'Eha, meaning "The Four Waters." Duey is president of Hui o Na Wai 'Eha, representing about 300 community members.

"I'm not an environmentalist. I'm a one-issue guy. And it's about the water," said the 74-year-old Duey, who's lived in Iao Valley for 44 years. "It's a fight worth fighting for."

The four streams historically flowed from mauka to makai, sustaining communities when its waters teemed with native freshwater animals -- opae (shrimp), oopu (fish), hihiwai (freshwater opihi) -- and supplying water for wetland taro, a staple of the Native Hawaiian diet.

39.9M: Average water produced in Maui streams and aquifers in gallons per day during July 2011

168.8M: Monthly water consumption in gallons for agricultural use in the Wailuku district

7.2B: Monthly water consumption in gallons for nonagricultural use in the Wailuku district

Sources: Maui County Department of Water Supply, Maui County Data Book 2011

"Before, people could gather and be sustained, live off the land and ocean and the streams. Now you can't do that," said Skippy Hau, an aquatic biologist on Maui for 28 years for the state Department of Land and Natural Resources.

The intake system in the Wailuku River -- a metal grate across the width of the stream -- was built by the now-defunct Wailuku Sugar Co. plantation that shut down in the 1980s. It's now run by a descendent, the Wailuku Water Co., which also inherited the 13,200-acre watershed in the West Maui Mountains that feeds Na Wai 'Eha.

Wailuku Water President Avery Chumbley insists the company doesn't sell the water, but "delivers surface water for agricultural uses" for a "delivery fee." Maui County buys between 3 percent to 5 percent of the diverted water and sells it to businesses and residences, while Hawaiian Commercial & Sugar Co., the state's last surviving sugar plantation, cultivates about 6,000 acres of cane with Na Wai 'Eha water.

Chumbley said he has "no position one way or another" on the restoration of the streams.

Duey takes issue with the diversions. He said the law is clear: Water in Hawaii is a public trust resource.

"The water code -- the 'Water Bible' -- doesn't say water is for commercial sale. When you read the law, how in the devil can what's happening happen? It's so frustrating that the public has to fight for this when the law is there," Duey said.

Native Hawaiian rights protected in the code include access to water for subsistence, cultural and religious uses.

The restricted water also affects organisms in the streams, Hau said. Their amphidromous life cycle -- born in fresh water, they drift into the ocean as larvae before migrating back into fresh water to grow into adults -- requires continuous mauka-to-makai flow.

Hui O Na WaiI 'Eha in 2004 took its arguments to the state Commission on Water Resource Management, seeking enough water restoration to get the four streams to flow to the ocean.

The fight is still ongoing.

Earthjustice joined the case as the Hui's attorney. The Office of Hawaiian Affairs and environmental group Maui Tomorrow Foundation also joined the fight.

The water commission issued a decision in 2010: Release 10 million gallons per day to Waihee and another 2.5 million gallons per day to Waiehu, and nothing to Wailuku or Waikapu.

That decision strayed from the recommendation of former water commissioner Lawrence Miike, the hearing officer for the case, who presided over months of testimony and arguments.

1.29B: Monthly water consumption countywide for agricultural use in 2010

10.9B: Monthly water consumption countywide for non-agricultural use in 2010

Sources: Maui County Department of Water Supply, Maui County Data Book 2011

Miike had recommended returning a total of 34.5 million gallons a day into the four streams, which he said would have established mauka-to-makai flow for all of them.

Hawaiian Commercial & Sugar had argued that Miike's recommendation -- about three times as much as the commission's final decision -- "tipped the balance too sharply in favor of stream restoration."

On appeal, the Hawaii Supreme Court late last year threw out the decision, ruling that "the commission violated the public trust in its treatment of (stream) diversions."

The high court sent the case back to the water commission. Miike has again been selected as the hearings officer for the do-over, which should get under way this fall.

"All we want to do is grow food," said Hokuao Pellegrino, whose ancestors farmed kalo on lands alongside the Waikapu Stream before it was diverted.

With limited water, he said, he's able to cultivate kalo in only two of the 12 loi (taro patches) on the 2.5-acre farm on kuleana land that dates from the 1848 Mahele, or division of land.

Pellegrino, who is involved in the Na Wai 'Eha case, added, "It's an injustice: not allowing those who want to go into agriculture by restricting access to water. These are traditional, customary rights that we are entitled to from our ancestors."

HC&S General Manager Rick Volner Jr. said the majority of its 36,000 acres is irrigated with water from the East Maui watershed with the balance coming from Na Wai 'Eha. He said 16 brackish water wells supplement the stream water when needed.

In the summer months, Volner said, "every single drop of water that comes in the surface-water ditch system plus the wells running is still not enough." He declined to say how much water the plantation consumes.

Separate from Na Wai 'Eha, he said the plantation restored water to 19 streams in East Maui in 2008 and 2010.

Volner said restoring stream flow has a "negative impact financially" because less water for its crops means lower sugar yields.

"Throughout the East and West Maui proceedings, we were very consistent in saying if there are people along the streams that require water, we see that as a valid use of water," he said, "but to put water back in the stream just to put water back in the stream and potentially affect 36,000 acres in the Central Valley and 800 jobs, we didn't see the benefit to that."

Duey said, "We don't want to see HC&S go out of business. That's not our aim at all. The only goal is to get water flowing to the ocean. We're not trying to take all the water."

Meanwhile, stream life in the Waihee River, where 10 million gallons per day has been restored, is starting to make a comeback, said Scott Fisher, director of conservation for the Hawaiian Islands Land Trust.

The trust, which owns the 277-acre Waihee Coastal Dunes and Wetland Refuge, joined the Na Wai 'Eha case as a petitioner.

"We're seeing a lot more standing water in the wetland ... and in the stream, we've seen more species of oopu in larger numbers, opae and hihiwai. It takes time. We're hoping that over time with more water in the river, we'll see a more vibrant and diverse ecosystem," Fisher said.

Earthjustice attorney Isaac Moriwake said he's gearing up for a second round in the case.

"What the case made vividly clear was that there is plenty of water to be returned back to the rivers and streams now that Wailuku Sugar is gone," he said. "These plantation companies turn into water companies and want to control the future. But water is not a private entity."

At the same time, he said he recognizes the economic benefits of HC&S's operations.

"The focus is on preserving the rivers and streams for future generations and restoring them as a natural and cultural treasure like they were for hundreds of years before HC&S, and hopefully for hundreds of years after HC&S," Moriwake said.

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