Four streams will be flowing in settlement of Na Wai Eha

For the first time in more than a century, there will be a steady flow of water from mauka to makai in all four Na Wai Eha streambeds.

The state Commission on Water Resource Management approved a contested case settlement agreement last week that will restore about 10 million gallons of water per day to Iao Stream and 2.9 million gallons per day to Waikapu Stream. The commission previously had ordered the return of stream flow to the two other streams in 2010 – 10 million gallons per day to Waihee River and 2.5 million gallons per day for Waiehu Stream.

“Now all four Na Wai Eha streams will be flowing, which benefits not only residents in the (Iao) valley and Native Hawaiian practitioners, but the entire public including future generations,” said Earthjustice attorney Isaac Moriwake, who represented Hui O Na Wai Eha and Maui Tomorrow Foundation, which first advocated a decade ago for the return of stream flow to Central Maui’s four main streams.

“Now, anyone can go downstream the (diversion) and swim in the river . . . and farm kalo loi they’ve been waiting for for 10 years,” Moriwake said. “There are more issues to come, but right now all the parties agree we need to get these streams flowing again.”

Wailuku Sugar Co. first began diverting water from Na Wai Eha in the 19th century to irrigate its sugar cane fields, and after the plantation shut down in the 1980s became Wailuku Water Co. Today, the water company delivers surface water to a number of users, including Maui County and agricultural users from the northern Waihee ridge area all the way to Maalaea.

An official with the water company said it is possible that its delivery rates will be increased to offset costs of the new agreement.

“Yes, there will be a cost to do the implementation, but we’re pleased that it’s a workable solution to a difficult problem,” Wailuku Water Co. President Avery Chumbley said. “With the adoption of these standards, it allows the commission to address the water use permit process and us as a water company to adjust water delivery rates.”

Chumbley said that stream flow is unpredictable because streams tend to flash. The new standards offer some flexibility for in-stream flow. For example, if the stream flow at Iao Stream (formerly known as Wailuku River) dips below 15 million gallons per day, then the new standards require only that two-thirds of the water stays in the stream – a third may still be diverted.

“All the parties involved came to the conclusion that this needed to be settled, and the time was now to get it done,” Chumbley said.

Hawaiian Commercial & Sugar Co., the state’s last surviving sugar plantation, is one of the biggest users of Na Wai Eha water. During the state water commission’s initial proceedings in 2004, the plantation claimed that it needed continued use of the water to irrigate its 36,000 acres of sugar cane and to keep its 125-year old business running.

But the commission found that the sugar company may be able to pump up to 18.5 million gallons per day from one of its wells – nearly twice the current average rate of 9.5 million gallons. The commission estimated that restoring stream flow would cause HC&S to lose about 2 million gallons per day.

HC&S officials declined to comment Monday on how their operations would be impacted if at all but issued a statement in support of the settlement.

“The mediated settlement represents a compromise on the part of all of the parties involved,” HC&S General Manager Rick Volner said in a statement. “We respect and appreciate the good faith exhibited by all who were involved in the mediation, and the time and effort everyone invested in the process.”

For Hui O Na Wai Eha President John Duey, the new standards are “a long time coming.”

“Water is a public trust, the law has finally been upheld after almost a 10-year battle,” said Duey, who has lived in Iao Valley since 1969. “It’s a shame we had to fight this long to get it done . . . but it’s just a fine day for me.”

No timeline has been given as to how soon these stream flow standards will be implemented, though Duey said that the 2010 decision to restore water to Waihee River and Waiehu Stream was completed within 60 days.

The contested case process began in 2004 and stems from a dispute over mauka diversions of the streams for Central Maui sugar cultivation and domestic use, leaving Native Hawaiian and environmental groups to seek an order from the state for the return of more water to the streams to revive their flora and fauna and to allow healthy taro cultivation.

The Maui County Department of Water Supply, Wailuku Water Co., HC&S, the Office of Hawaiian Affairs, Hui o Na Wai Eha and Maui Tomorrow Foundation are parties in the contested case process.

In 2010, the water commission ruled that HC&S and Wailuku Water Co. needed to restore 12.5 million gallons per day to the Waihee, North Waiehu and South Waiehu streams. The amount of water was about a third of the 34.5 million gallons per day that the commission’s hearings officer recommended for restoration to the four streams.

The Hawaii Supreme Court in August 2012 vacated the commission’s ruling and sent the case back to the panel “for further proceedings consistent with this opinion.” The justices ruled that commission members had erred in their 2010 ruling by not properly considering the effect of their decision on Native Hawaiian practices, by insufficiently analyzing stream uses by flora and fauna, and by not adequately considering alternative water sources.

While the agreement marks the end of a decadelong struggle, it is merely “the first step” in establishing a series of procedures, attorney Moriwake said.

“We’re going to get all four river and streams flowing, but we still have permitting to come,” Moriwake said. “In that process, the companies are going to have the burden of proving exactly what amounts of water they need and the available alternatives to draining from the stream.”

He said while HC&S and Wailuku Water Co. would be the primary petitioners, individual kuleana land owners also will have to file permits to divert water from the stream, though they have priority over the two companies.

“The settlement is a great first step in moving our island’s water policy into the 21st century,” Maui Tomorrow Executive Director Irene Bowie said. “Although we know there’s legal processes ahead, right now just knowing that stream flow is going to be returned to Iao and Waikapu makes us very, very happy.”

* Eileen Chao can be reached at