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State decision reached in Na Wai ‘Eha water case

But work for community is far from over

Rose Marie Duey advocates for Wailuku River on Nov. 19, 2019, at J. Walter Cameron Center during closing arguments in a contested case involving Na Wai ‘Eha, “the Four Great Waters” of Waihee River, Waiehu Stream, Wailuku River and Waikapu Stream. The state Commission on Water Resource Management at the time was nearing a long-awaited decision on stream levels and water allocations for residents, water companies and farming. The commission released its decision and order this week. The Maui News /MATTHEW THAYER photo

Community leader Hokuao Pellegrino said he teared up when he told the story of Teruo Kamasaki at the state Commission on Water Resource Management hearing more than a year ago. 

The Japanese man, who dedicated his life to working for Wailuku Sugar Co., was only seeking a few thousand gallons of water per day from Na Wai ‘Eha water system for his small Waikapu farm but he died before he could secure it.

“Teruo was an important person in the beginning of our case,” said Pellegrino, president of Hui o Na Wai ‘Eha, a local nonprofit that advocates for the protection of the streams. “Unfortunately, he never, he’s a kupuna, so he never lived to see the day.”

After 17 years in what Pellegrino calls the largest water rights case in the history of Hawaii, the commission issued this week a lengthy decision and order on Na Wai ‘Eha water use that officially recognizes appurtenant rights, including kalo farming and other traditional and customary practices. 

Pellegrino said 18 hui water applicants have passed away since this process began.

Teruo Kamasaki had sought a few thousand gallons of water per day from Na Wai ‘Eha water system for his small Waikapu farm but he died before he could secure it. Na Wai ‘Eha photo

The sweeping decision announced Monday impacts more than 150 different applications to use water, including small farmers, like Pellegrino, to larger groups, such as the County of Maui and Mahi Pono. In all, 1,000 determinations resulted in 116 recognized appurtenant rights and 176 permits, according to the commission. 

Water allocations for Na Wai ‘Eha available stream flows include: 51 percent for in-stream habitat and related benefits; 28 percent for reasonable and beneficial uses, such as diversified agriculture; 14 percent for kalo cultivation; 7 percent for municipal water supply; and 0.09 percent for domestic use. 

Much of the water is funneled to various users via the Wailuku Water Co.-owned water delivery system, which dates back to the early 1900s.

The commission’s decision approved two permits that total 3.2 million gallons per day so the County of Maui Department of Water Supply may continue to supply water from Na Wai ‘Eha system to people in Kuau, Paia, Spreckelsville, Kahului, Puunene, Kihei, Wailea, Makena, Waikapu, Wailuku, Waihee and Waiehu, according to county Deputy Corporation Counsel Caleb Rowe.

Rowe during a county news conference Tuesday said the commission since 2003 has been working on water allocations and the community disagreements over what to do with the water go back even farther. 

“However, with this decision and its far-reaching implications, hopefully we can reach a new chapter in how water in Central Maui is distributed,” he said. “And we also believe that this large-scale decision, which is the biggest in the commission’s history involving the most parties, will set a framework for resolving water disputes statewide and for future generations.”

Saying it’s the most comprehensive application of the Hawaii Water Code to water use and protection in history, the commission said the decision is the culmination of a “lengthy and complicated Contested Case Hearing that synthesizes voluminous evidence in what was a multi-faceted proceeding.”

For the first time, Native Hawaiian traditional and customary kalo cultivation has received priority in allocation of water through the water use permit allocation process, Carmen Hulu Lindsey, Office of Hawaiian Affairs board chairwoman, said in a statement.

Moreover, the decision represents a key shift from plantation water management to balanced water management, according to the commission. 

“The wai of Na Wai ‘Eha have been a source of conflict since plantation diversions emptied streams decades ago,” Kaleo Manuel, commission deputy, said in a statement. “It has taken two decades to fully settle these complex matters which often strained relationships between instream users like kuleana tenants and mahi ‘ai kalo and offstream users and stream diverters.”

Na Wai ‘Eha, or the “Four Great Waters” of Waihee River, Waiehu Stream, Wailuku River and Waikapu Stream, had long been diverted for sugar cane operations. 

In 2003, though, the commission declared the system a special water management area that required a commission-issued permit for anyone wanting to use the water.

Since then, the commission has been trying to figure out how to best manage the public trust, while juggling various public, private and environmental interests.

In 2004, the hui petitioned the commission to restore mauka-to-makai streamflow for Na Wai ‘Eha; as a result, Maui’s first interim in-stream flow standards were established for Na Wai ‘Eha in 2010 and 2014. 

When Hawaiian Commercial & Sugar Co. closed in 2016, the hui again petitioned the commission to increase flow standards and urged the panel to finalize water allocations for kuleana kalo and diversified farmers via the water use permit applications process that began in 2009.

Pellegrino initially expressed disappointment over water left in the streams after the commission’s latest decision. Also, he said details on implementing the plan were left out by the commission, and permit holders are left trying to figure out how to get access to water if infrastructure is lacking.

“Our job is to help articulate this to a lot of folks,” he said.

Pellegrino did express optimism, though, that commissioners have their hearts in the right place as they navigate the complexities of water resource management.

“This is by far the largest water rights case in the history of Hawaii, even predating the illegal overthrow,” he said. “I hope that they would want to make this right and have a feather in their cap. I think they want that. I think these people want to see it done right. So I’m optimistic that we will be able to work together and fix some of these things.”

Wailuku Water Co. President Avery Chumbley said that the document will take time to analyze, adding that he has some initial concerns.

“I am concerned about some of the obligations and requirements that it places on the water company almost to become the water konohiki, in that sense,” he said. “We have to become the enforcement and the regulator for a lot of what the water commission is setting forth. And it’s going to be challenging and difficult to accomplish that.”

Chumbley said that he hasn’t come to conclusions on whether the company will file for an appeal, but that the document likely isn’t the final version.

“I personally don’t think that this is a final,” he said. “There are such far reaching issues in here that there will be multiple parties who file motions for reconsideration or file an appeal directly to the Supreme Court.”

The County of Maui has been considering acquiring the Wailuku Water Co. water delivery system for some time, and the state is mulling purchasing the surrounding watershed lands. 

Mahi Pono officials declined to comment on the decision as they review the more than 400-page document.

To view the commission’s final decision and order, visit https://dlnr.hawaii.gov/cwrm/newsevents/cch/cch-ma15-01/.

* Kehaulani Cerizo can be reached at kcerizo@mauinews.com.

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