Landmark decision restores flow in 10 Maui streams after more than a century

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East Maui stream provided by DLNR

A landmark decision was made Wednesday, June 20, in the largest water rights case in the state.

For over 100 years, Alexander and Baldwin diverted the water to feed sugarcane in Upcountry and Central Maui – water that opponents say took away from family loi, impacted native cultural practices, and hurt the unique habitat within the streams.

Even after HC&S shut down two years ago, A&B said it still needed water for diversified agriculture.

Since 2001, Na Moku Aupuni O Koolau, a group of kalo farmers, fisherman, and hunters, has petitioned to see streamflows restored to 27 East Maui streams.

On Wednesday, the Hawaii Commission on Water Resource Management met it partway by issuing a decision to completely restore streamflow to 10 streams that support significant kalo cultivation.

The state said it weighed the economic and social benefits of offstream uses. In its East Maui interim instream flow standards decision, the state said:

“In addition to ground water, excess flows, and water efficiencies, our best estimate is that we have provided for about 90% of the reasonable irrigation needs for 23,000 acres of Important Agricultural Lands (IAL). …

Our goal was a decision that could be realistically implemented, measured, and assessed on the ground as well as communicated and understood by stakeholders.  It was purposefully designed to increase the practical knowledge of stream flows and native habitat restoration.  We believe the allocations to be reasonable accommodations to current conditions, yet we are committed to on-going monitoring in order to identify the need for adaptations to changing circumstances.”

“It’s a landmark decision,” Summer Sylva of Native Hawaiian Legal Corp, on behalf of Na Moku Aupuni o Koolau Hui, told KHON2. “The making of the full restoration of 10 streams the new streamflow standard is unprecedented. The order to achieve 90-percent habitat recovery for seven streams is a huge triumph for what has been basically two-decades long litigation and fight for the restoration of these waters.”

“Ensuring mauka-to-makai flows for all previously diverted streams reflects a valuing of the East Maui watershed for the life and traditions it supports – taro farming, fishing, hunting, gathering, recreational use, stewardship, and its awe-inspiring beauty,” she added.

Sylva says non-instream water use caps will be determined by BLNR in a separate licensing proceeding.

Ed Wendt, president of Na Moku Aupuni o Koolau Hui, said, “Our community spread its wings over the whole of the Ko‘olau and accomplished something great for the waters of Kane, for all the people of Ko‘olau, for all people of Hawaiian ancestry, and for our public trust. Armed with this decision, East Maui will have the water and the tools required to build a vibrant community, a vibrant future.”

A&B is still reviewing the decision. A spokesman said in a statement, “It is a lengthy decision. We are still reviewing it relative to our goal, which has always been to put the entire former HC&S footprint into sustainable, diversified agricultural operations.”

The East Maui ditch system was constructed in phases, beginning in the 1870s and extending to the completion of the current system in 1923.

The commission says it still supports the use of a portion of East Maui stream water for the development of diversified agriculture on Maui’s central plains, and that “that leaving these lands in an un-cultivated state will increase wind-blown erosion that will damage Maui’s near shore marine environment, air quality and tourism competitiveness.”

The Office of Hawaiian Affairs wrote the following statement regarding Wednesday’s decision: 

The Native Hawaiian communities of East Maui have fought for 30 years for the restoration of sufficient stream flow to support their kalo farming, subsistence practices, and native stream and coastal marine life, as required under the state constitution and laws.  That the contested case hearing underlying yesterday’s decision has taken nearly two decades to resolve is in many ways an injustice in itself.
 
While OHA is still fully reviewing the 300-page document issued yesterday, we believe the decision represents a significant step to achieving justice for our East Maui beneficiaries who have sought a fairer distribution of public trust water that has been monopolized by industrial sugar interests for more than a century.
 
OHA expresses its gratitude to the attorneys of the Native Hawaiian Legal Corporation, who for over a decade have worked tirelessly to vindicate the rights wrongfully denied to our East Maui beneficiaries; to the hearings officer and commission members and staff who have dedicated a substantial amount time and resources to hopefully correct this ongoing injustice; and most of all to our beneficiaries themselves who have sacrificed so much to hold the state and powerful corporate interests accountable to our constitution and to the public trust.

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