WAIKAPU - After the state Supreme Court kicked back the state Commission on Water Resource Management's 2010 ruling about exactly where - and how much - water to restore to Na Wai Eha, opponents said last week that they were jubilant that the commission will be forced to "redo" its review of competing water uses.
The justices last week rejected for errors or omissions the Commission on Water Resource Management's decision to restore about a third of the stream water recommended by fellow board member Dr. Lawrence Miike.
The justices stated in its 88-page opinion that "the commission violated the public trust in its treatment of (stream) diversions."
Victor Pellegrino, a party in the ongoing case to restore water to Central Maui’s “four great streams,” or Na Wai Eha, works last week in one of his family’s two taro patches, or kalo loi. Pellegrino said he was optimistic that the state Commission on Water Resource Management would amend its 2010 decision and return more diverted water to the streams, including the one next to his property in Waikapu.
The Maui News / CHRIS HAMILTON photo
The issue had pitted some business interests versus those of taro farmers and environmentalists who want to see more water returned to all four Na Wai Eha streams - Waikapu, Iao, Waiehu and Waihee - revitalizing traditional practices, aquatic life and the aquifer.
"Basically, we won on all counts, and we're very, very, very happy. It's hard to put it into words," said John Duey, a farmer and lead plaintiff with Hui o Na Wai Eha, an environmental group advocating for the restoration of traditional water rights.
However, Hawaiian Commercial & Sugar Co. and others who support the commission's 2010 decision - to return 12.5 million gallons per day to the Waihee and Waiehu streams, but nothing to the Iao and Waikapu streams - said the state Supreme Court's action won't necessarily change the status quo.
HC&S General Manager Rick Volner remained confident last week that the plantation would continue to have access to Na Wai Eha water for sugar cultivation.
He said that while the Supreme Court's ruling called for further review, the commission has more than an "adequate basis for its original conclusions" and would strike a beneficial balance.
Taro growers seeking more water from the streams have been uplifted by the Hawaii court's ruling.
"We were all excited," said Victor Pellegrino, whose family has an educational farm along Waikapu Stream called Noho'ana. "It was one victory, but a big one. I think that they're going to give us our water back so we can grow food. The question is how much."
Pellegrino's family members have goats, fruits trees and flowers, but they really want to expand their two loi and maybe build a roadside poi stand.
"We've been patient and saying good things will happen, and they finally did," he said. "I think it just makes sense for it to get better."
There's a likelihood that new decisions will come sooner rather than later, said recently appointed state water commission member Jonathan Starr of Maui.
"But I don't want to presuppose what they'll be or what the numbers will be," Starr said.
The amount of water returned to the streams could be higher or even lower, but either way, Starr said that people with appurtenant water rights will have first dibs. Those are traditional land practice claims dating back to the monarchy days. Commissioners will appoint a hearings officer to identify and fulfill the claims, independent of any new overall Na Wai Eha decisions, Starr said.
The Hawaii Supreme Court said that commissioners didn't fully and independently investigate all the facts or viable alternatives. Those included HC&S' total cultivated acreage and financial hardship claims by the largest beneficiary of the current instream flow standards.
"This long-overdue victory protects the cultural and traditional rights of Native Hawaiians and will have a far-reaching effect," said Colette Machado, chairwoman of the Office of Hawaiian Affairs, another in the case with Duey's hui and Maui Tomorrow. "The ruling shows agencies must protect natural resources that are critical not only to our immediate well-being, but to the very survival of our culture and way of life."
HC&S cultivates about 5,300 acres of sugar cane with Na Wai Eha water, while Wailuku Water Co. sells its diverted stream water to Maui County, businesses and homeowners. The companies divert as much as 70 million gallons of Na Wai Eha water per day.
The high court said that the commission also erred by not fully exploring alternatives, such as HC&S reopening Well 7. HC&S pumped up to 21 million gallons per day from the well from 1927 to 1988, when its cane competitor went out of business. Then the cheaper, gravity-driven stream water became available.
The court's order says the commission erred as well by not considering cutting down on an estimated 13 million gallons of wasted water from old and leaky systems.
Finally, the justices said the commission should have pursued recycled wastewater, too. That change alone might be enough to sate residents with water rights who want water permits to grow taro and other crops, the court said.
"I also firmly believe that at the end of the day more water will be restored and to all four steams, hopefully to the ocean," said Isaac Moriwake, the lead plaintiff attorney with Earthjustice.
Duey said he's ecstatic, especially if the commission defers to the lengthly contested case, which Miike presided over. With it, the commission members have all the history, opinions, facts and studies for a better decision, including Miike's recommendation to restore half the water to all the streams before being rejected by his business-minded colleagues, he said.
Sugar growers have been clear over recent years that they need water for crops and thus good agricultural jobs, especially during volatile economic times and an ongoing drought.
That considered, HC&S officials said pumping Well 7 water is too expensive and would require about $1 million in upgrades. And HC&S officials said they can't afford to lose the estimated $1.8 million annually in electricity they sell to the public utility by burning bagasse.
Whatever happens, the Hawaii court's ruling will renew debate over where Na Wai Eha water should flow.
"I think it's basically a strong message that you better go back to the drawing board on this," Moriwake said.
* Chris Hamilton can be reached at firstname.lastname@example.org.