Our water law was certainly in the news this week. The decade-old lawsuit pitting Native Hawaiians and environmentalists against corporate institutions that have been part of Maui since the 19th century is over.
Na Wai Eha means "the four waters" of Waikapu Stream, Iao Stream, Waihee River and the Waiehu Stream. They are the main source of freshwater for Central Maui. Long before any of us were around, these waters flowed from the green mountains toward the ocean. The first people to divert some of its waters were the Native Hawaiian farmers. Their descendants used the streams to maintain their crops. Early cases point out that these diversionary ditches had been around since time immemorial.
Then came sugar. After the American Civil War cut off America's industrial cities from the Deep South's sugar beets, the demand for Hawaiian sugar went through the roof. Sugar plantations and companies sprouted up throughout the islands, including Wailuku Sugar Co.
Sugar's a thirsty crop. Companies started diverting streams into irrigation ditches and reservoirs. By the 1890s, all four streams had been diverted and Wailuku Sugar had control of the water.
Kalo famers took notice. Their crops dried up and wilted away while Central Maui turned green with acres of cane. They sued the company. Sugar baron Claus Spreckles himself intervened. (His eponymous ditch still runs water through the heart of Wailuku town.)
The farmers argued that the diversion of Iao Stream was unlawful. The Hawaii Supreme Court ruled in favor of the farmers but limited their use of the stream to nighttime. The rest of the time the stream could be used by the sugar companies. The farmers may have won their case, but eventually everyone seemed to have forgotten. The sugar companies took more and more water for their crops.
* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is firstname.lastname@example.org. "The State of Aloha" alternates Fridays with Ilima Loomis' "Neighbors."
In the meantime, Wailuku Sugar Co. got into a bitter dispute with Hawaiian Commercial & Sugar Co. HC&S had the land but wanted more water. Wailuku Sugar Co. had the water but not as much land. They didn't bury the hatchet, and their dispute went on for more than 20 years before Wailuku Sugar Co. agreed to sell the water to HC&S.
The agreement held for almost a century, even during the later decades when Wailuku Sugar Co. got out of the sugar business and started selling water. HC&S wasn't the only customer. The company started selling water to the county and that brought about the rapid development of South Maui. These days, if you are flushing a toilet or washing your face in Kihei, you are most likely using water from Na Wai Eha. And that's how it's been for most of our lives.
Most of us cannot remember a healthy and flowing Waikapu Stream. (Take a look for yourself at the rocky and dusty streambed as it passes beneath Honoapiilani Highway next to Waiko Road.)
But the farmers struck back. About 10 years ago, when the now aptly named Wailuku Water Co. and HC&S requested renewal of their use permits with the state water commission, a group of farmers objected. They argued, among other things, that their traditional and customary rights as Native Hawaiian kalo farmers had been violated. That started a long controversy.
While the original agreement between Wailuku Sugar Co. and HC&S stayed put, the law had changed dramatically. In the 1970s, the Hawaii Constitution was amended. Waters were no longer just any kind of property. It was held in the public trust for the benefit of all peoples. Native Hawaiians also had their traditional gathering and customary rights protected and recognized by constitutional provisions and a series of cases from the Hawaii Supreme Court. Given these revolutionary changes, the water commission was faced with new duties and tasks. The government now had a big say in the way old companies handled water.
And so the farmers' objection turned into a 23-day evidentiary hearing involving 77 witnesses and hundreds of exhibits. The water commission required the companies to reduce the amount of water they had been diverting from two streams, but not the other two.
The case went up on appeal and the Hawaii Supreme Court ruled for the farmers - again. It held that the commission did not adequately consider the now-constitutionally protected rights of Native Hawaiian farmers and their traditional and customary rights.
The court sent the case back to Maui and after more negotiating the case was settled, as we learned this week. The terms of the settlement require the water company to restore water levels to the two remaining streams: Waikapu and Iao. Seems like the deal is going to go through. Kihei won't lose all its water and maybe we can start to see water flowing underneath the highway in Waikapu.