Shave Ice

Public lands in public hands; Don't cut deals with water profiteers!

- Water rights slogan

While African piracy, GM's collapse and a global swine flu outbreak have riveted the nation's attention recently, a quieter but no less newsworthy development has occurred here in Hawaii.

For perhaps the first time in living memory, surface water diverted generations ago for plantation use is to be returned to the West Maui watershed's four namesake streams.

Not all the water, and not right away. But some water, someday.

Announcing preliminary findings from a five-year "contested case" proceeding, the state Water Commission recently ruled that Na Wai Eha, the "four waters," again must be enabled to run to the sea.

To that end, the commission has set "in-stream flow standards" for the Waikapu, Wailuku, Waiehu and Waihee streams. Although they vary from stream to stream, the standards have one feature in common: They could bring those moribund watercourses back to life.

According to preliminary reports, the private companies that control the freshwater sources must release into the four streams a percentage of the water now diverted for agriculture, real estate development and sale to Maui County.

The ruling's main goal is to restore the natural stream habitat of Hawaiian freshwater fish and shrimp species and to recharge brackish aquatic resources at each stream's mouth. A secondary benefit would accrue to taro farmers and other "kuleana" (vested by ancestry) water users who have permits to withdraw water from the streams.

The mechanics of this partition are as complex as Hawaii's water politics itself, but the gist of the commission's ruling seems clear: Millions of daily gallons of fresh water now diverted into plantation ditches by dams, grates and culverts again will tumble down Puu Kukui to the ocean.

A similar lawsuit seeking to limit commercial water diversions in the East Maui watershed also has been inching toward adjudication. As with the West Maui case, any lasting resolution likely will take years, if not decades. But in both instances, a principle has been set down: The public finally will get some of its water back.

How much water? That remains to be adjudicated, and the process could take a long time. As Earthjustice water law specialist Isaac Moriwake told a Kahului gathering last week, it has taken the State of Hawaii 50 years simply to reassert a public right to water.

"During pre-contact times, nobody owned Hawaii's water," Moriwake explained. "It was held in trust for everyone by the kings and the alii. But during the territorial era, federally appointed judges accommodated the sugar industry by changing the law to where water became private property." In effect, the plantations and water companies that had built catchment and diversion systems to collect the water became its legal owners.

When Hawaii became a state in 1959, Moriwake continued, the justices of its new Supreme Court ruled that "the Territorial judges had gotten it wrong." This ruling triggered a lawsuit by the planters, who fought the state to a 20-year "stalemate" in the federal courts.

In 1978, the state held its first Constitutional Convention. Out of this came a water code and a water resources agency recognizing water as a public trust, Moriwake said.

The present state Water Commission was formed in 1987 and soon found itself embroiled in the Waiahole Ditch case of the 1990s. This pitted the Oahu Sugar Co. against Windward Oahu taro farmers, who asserted ancestral rights to fresh water long claimed by the plantation.

A 2000 ruling by the Hawaii Supreme Court in the Waiahole case "reaffirmed the public trust doctrine," Moriwake continued, but Waiahole proved to be just a battle in an ongoing war. Now the struggle has shifted back to Wailuku.

"Our first water crisis is here on Maui," Moriwake said. "The first real crunch between water as public trust and water as private property is happening here right now. This is ground zero for that."

Asked what could be done to ensure that Na Wai Eha remains a public trust, Moriwake urged his audience to support the Maui County Council's new "show me the water" bill. "Insist that the county assert control over the water resources for the good of the people," he added. "And practice conservation."

In closing, Moriwake urged the listeners to lobby for county acquisition of thousands of acres of West Maui watershed now in private hands. He also warned that the Waiale water treatment plant Alexander & Baldwin proposes to build and then dedicate to the county could become a Trojan horse.

"The county is looking to cut a deal on this," he said. "But we taxpayers will pay for it eventually."

* Tom Stevens is a freelance writer whose "Shave Ice" column appears every Wednesday. He can be reached at shaveice@maui.net.