Waimea water accord is ‘win-win-win’

The history of water rights in Hawaii goes back hundreds of years, but on April 18, new history was made with the state Water Commission’s approval of a settlement that restores flows to Kauai’s Waimea River. For the first time in over 100 years, the “Grand Canyon of the Pacific” will flow from mauka to makai, instead of being drained dry by diversions dating from Hawaii’s sugar plantation era.

Equally historic is how this flow restoration came about. For the first time, water is being returned through mediation and voluntary agreement — not litigation.

This agreement not only opens a new era for the long-deprived Waimea River and the communities it supports. It also offers a new path for resolution and reconciliation in water disputes in Hawaii.

During the plantation era, sugar companies treated stream water as their property, diverging from ancient Hawaiian principles that water is a public trust for all. Yet, even as the plantations closed down, the water didn’t return. Instead, companies continued to hoard stream flows and profit from selling hydropower and water to the public.

For decades, local and Native Hawaiian communities, represented by public-interest law firms like Earthjustice, have fought to restore these streams. The first landmark battle began on Oahu in the 1990s over the Waiahole Ditch’s diversions of windward streams. The struggle then moved to Maui in the 2000s, where efforts to restore Na Wai ‘Eha (“The Four Great Waters”) and East Maui streams continue today.

These water cases have been marked by years of litigation, during which diverters fight tooth-and-nail against giving up any water. The cases have also gone repeated rounds because the Water Commission has fallen short in protecting public and Native Hawaiian water rights and has been continually reversed on appeal by the Hawaii Supreme Court.

The Waiahole case took 15 years and three appeals to resolve. The Na Wai ‘Eha case is entering its 13th year, has gone to the Supreme Court once, and is still ongoing — although a settlement in 2014 achieved initial restoration of all four streams.

The experience of previous litigation, and the repeated court rulings, seemed to motivate a different course for Waimea. The Waimea agreement provides for immediate return of stream flows and follow-up actions to return more water and modify the diversions for the passage of native stream life. The agreement recognizes as its first principle: “All streams will be allowed to run from the mountain to the sea and no diversion will ever be a total diversion again.”

The agreement also provides water for agricultural uses, including homesteads on Hawaiian Homelands, and includes a framework for a potential modern “pumped hydro” project that would generate clean energy while protecting instream flows.

In short, the accord enables a “win-win-win” solution, instead of the “zero-sum” conflict of past cases.

As Commission Chairwoman Suzanne Case remarked, the agreement is just as significant for “what didn’t happen.” While it took nearly four years to reach agreement on restoring Waimea River, mediation proved far quicker, easier, and less costly and acrimonious than a decade-plus of litigation.

The Water Commission showed leadership not only in calling for mediation, but also in expressing expectations for results. Credit also goes to the diverters, who recognized the value of coming to terms. Finally, mediator Robbie Alm, who mediated the 2014 Na Wai ‘Eha settlement, was again instrumental in crafting the solution.

More disputes will inevitably arise over other plantation-era diversions that persist around the islands. Maybe not all will be resolved cooperatively, but the Waimea agreement is a historic example of how to do the right thing.

Isaac Moriwake, David Henkin and Kylie Wager are the three Earthjustice attorneys who worked on this case.