Battle might not be pau over Maui stream water

A day after the state Commission on Water Resource Management issued a historic decision in the long-running dispute over Maui stream water, the groups who started the legal action 17 years ago were expressing concern about a document they said is flawed.

“This is a model for 21st-century water management for all of Hawaii,” Earthjustice attorney Isaac Moriwake said Tuesday, “but we owe it to the community who carried the burden for this, and to future generations, to get it right.”

The commission Monday called its decision and order on the Na Wai Eha streams “the most comprehensive application of the Hawaii Water Code to water use and protection in history,” and Native Hawaiian leaders hailed the effort as a landmark step in the ongoing struggle to uphold Native rights protected under the state’s public-trust doctrine.

Na Wai Eha encompasses the “four great waters” of Maui: Waihee, Waiehu, Wailuku and Waikapu streams.

The commission’s 362-page decision for the first time recognizes the rights of everyone with a claim to the stream water, including taro farmers and others conducting traditional and customary practices.

The decision, among other things, sets aside water for sustainable agriculture and requires real-time metering of large-scale water diversions.

But Moriwake, who represents Hui o na Wai ‘Eha and Maui Tomorrow Foundation, said the decision not only keeps stream water flowing roughly at 2014 levels, when 80% of the diversions were going to sugar cultivation; it gives 5 million more gallons a day to Mahi Pono than the diversified ag firm agreed to in a November 2019 agreement and stipulation.

“It’s a head-scratcher,” Moriwake said. “They could have done a lot more to protect streams for future generations.”

Hokuao Pellegrino, president of Hui o na Wai ‘Eha, said in a release that he’s hopeful the flaws can be ironed out to avoid more appeals.

“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 Na Wai ‘Eha,” said Pellegrino, a Waikapu taro farmer.

Office of Hawaiian Affairs Board of Trustees Chairwoman Carmen “Hulu” Lindsey said in a statement that she found it “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 Na Wai ‘Eha to a fraction of the water sought by its predecessor, HC&S.”

Asked for comment, the Commission on Water Resources Management said in a statement that the parties involved “chose to use a consistent standard of 2,500 gallons per acre per day for all diversified agricultural uses, including those of Mahi Pono. … We hope that Mahi Pono honors all of its commitments that it has made with the community and not use more water than it needs.”

As for stream flow, “the Commission … determined the minimum amount of flow that must remain in (each) stream to provide for stream connectivity, habitat for aquatic biota, and support ecosystem health.”

A spokesperson for Mahi Pono on Tuesday said company officials were still looking at the lengthy decision and were not prepared to comment.

The battle over the four streams has been raging for the better part of two dec­ades, with farmers and community members fighting to restore water that was diverted by plantations for some 150 years.

The case even went to the Hawaii Supreme Court, which ruled in 2012 that the commission had failed to protect public and Native Hawaiian rights to flowing rivers and streams.

In 2014 a settlement restored continuous flow to all four of Na Wai Eha for the first time in over a century, enabling the restoration of stream and coastal ecosystems and native species habitat, increasing aquifer recharge and allowing loi kalo, or taro fields, to be farmed once again.

Lindsey said OHA would work closely with the community and its legal counsel in the coming days.