The many claimants on Na Wai Eha water will be fine-tuning their justifications for their claims. It still may not be enough to accommodate the future.
In rejecting the state Commission on Water Resource Management decision-and-order in Maui's Na Wai Eha dispute, the Hawaii Supreme Court on Aug. 15 found that the commission failed to justify key elements: inadequate findings on traditional and customary Hawaiian practices, inadequate analysis of instream uses and failure to fully examine alternative water sources for the commercial entities.
The Supreme Court decision does not reverse the commission's decision. It tells the commission to do a better job of explaining it, which would require the commission to do more than just consider evidence presented by the parties. The commission should not just be listening and weighing evidence presented but investigating which facts and claims are more credible - measured against the criteria for allocating water in line with the provisions of the 1978 Hawaii constitutional amendment declaring water a public trust.
Prior to the 1978 amendment, Hawaii territorial law allowed water to be privately "owned" by those on whose lands it passed.
As detailed by Dr. Lawrence Miike - former water commissioner, state public health director, attorney and Na Wai Eha hearings officer - standards for implementing state laws on water as a public trust were set by the Supreme Court in its rulings in the 1997 Waiahole-Waikane dispute over diversion of water from sources for the Waiahole and Waikane streams ("Water and the Law in Hawaii," Miike, 2004, University of Hawaii Press).
The Na Wai Eha case parallels Waiahole-Waikane in involving plantation stream diversions continuing after sugar plantations shut down and seeking to transfer water to other uses while continuing to diminish stream flows.
Among key points with Waiahole-Waikane, Miike says, the court established:
* "There are three distinct uses under the water resources trust as follows: (a) maintenance of waters in their natural state, (b) domestic water use, and (c) the exercise of Native Hawaiian and traditional and customary rights, which includes appurtenant rights;
* "And it is neither feasible nor prudent to designate absolute priorities between broad categories of use under the water resources trust, but any balancing between public and private purposes begins with a presumption in favor of trust uses . . . in practical terms, this means that the burden ultimately lies with those seeking or approving private commercial uses to justify them."
It does not mean that the Wailuku Water Co. or Hawaiian Commercial & Sugar Co. cannot show a reasonable need for their allocations from Na Wai Eha streams. They still may not get what they want when measured against needs and rights of other recognized users - including traditional uses and protecting a "natural state."
For all users, there is another concern, even when the commission orders an acceptable - if not fully satisfactory - balance on uses. Changing weather conditions over the past 50 years indicate there may be less water to divide in decades to come.
It is not an issue the commission can address.
Rainfall and drought records for Hawaii over the past 30 years show a drying trend. Rainfall is the primary source in Hawaii's water cycle, with trade-wind showers on windward and mauka slopes providing the bulk of the water recharging aquifers and streams. With Maui County more dependent on stream flows than Oahu or Kauai, it is more threatened by any long-term diminishing of surface flows.
Global climate change also appears to generate more extreme weather events - irregular heavy storms rather than the familiar pattern of convection-induced trade-wind showers. A result would be more water running off rather than slowly being released as stream flows or percolating into the aquifers.
* Edwin Tanji is a former city editor of The Maui News. He can be reached at firstname.lastname@example.org. "Haku Mo'olelo," "writing stories," is about stories that are being written or have been written. It appears every Friday.