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Kuleana farmers say water promised in historic decision hasn’t come

Upcoming state hearing will consider possible solutions for Waikapu area

Reservoir No. 1, which is owned by Wailuku Water Co., is shown over various points in time. Kuleana farmers that rely on water from Waikapu Stream are pressing the state to help them receive water that their permit allows, saying they’ve received zero to very minimal water for nearly a year. One idea to help fix the problem would be modifying the emergency release gate from unlined Reservoir 1 to allow for 265,188 gallons per day to flow directly into kuleana ‘auwai.

Over the last two decades, kalo farmer Emilou Alves said she’s never seen anything like it.

Alves testified this week that her Native Hawaiian family, along with other South Waikapu kuleana kalo farmers, have had zero to “very minimal” water for their lo’i since October of last year. Even in times of drought, it’s never been this bad.

“We would really like to have water so we can continue our farming,” she said during the state Commission on Water Resource Management meeting Tuesday. “We provide a lot of kalo and fruit and vegetables for the community — and right now we are unable to do that.”

The commission heard concerns from Hui o Na Wai ‘Eha, a local nonprofit that advocates for protection of the streams, and South Waikapu kuleana farmers who have been pressing for water via informal and formal complaints to the state.

Discussion and testimonies are being considered ahead of next month’s commission meeting, where staff said an action item will hopefully offer short- and long-term solutions.

Going without water for nearly a year — especially when a monumental state decision prioritized Na Wai ‘Eha water rights for kuleana Native Hawaiian users above others — is unprecedented, according to Earthjustice attorney Isaac Moriwake.

“Occasionally over the 17 years I’ve been working on this case, we’d get complaints from kuleanas about sudden shutoffs, usually it’s a maintenance issue, sometimes they get notice, sometimes they don’t, usually it lasts for days, maybe a week or two,” testified Moriwake. “But never in my 17 years working on this case have I ever seen such an outright dictatorial cutoff of kuleana rights for almost a year running now. This is nothing short of travesty of justice and a breakdown of a social order.”

Moriwake represented the hui in the contested case that led to the state commission’s decision and order for Na Wai ‘Eha water use issued in June. Na Wai ‘Eha includes the “Four Great Waters” of Waihee River, Waiehu Stream, Wailuku River and Waikapu Stream.

Hailed as the most comprehensive application of the Hawaii Water Code to water use and protection in history, the commission decision impacted more than 150 water applicants, resulting in 116 recognized appurtenant rights and 176 permits.

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, the Office of Hawaiian Affairs said.

Still, five permittees in the South Waikapu kuleana intake area have been saying they are not receiving anywhere close to what their state permits allow.

“The decision and order has been handed down to the community and set forth on June 2021 … yet no one seems to be following it and definitely no one is enforcing it,” Hokuao Pellegrino, hui president, testified Tuesday.

He added that water naturally moves south to the side that supports Waikapu Properties and other customers paying for water from Wailuku Water Co., which owns and manages the water delivery system.

“The company that owns and controls the water system prioritizes paying customers over legally protected kuleana users,” Pellegrino said.

Avery Chumbley, Wailuku Water Co. president, countered on Thursday, saying that allegation is “not true.” In fact, kuleana users are getting the water delivered daily to the ‘auwai at a rate of about three times as much as paying customers, he said.

“We want to go on the record and say Wailuku Water Company is in compliance with the decision and order and is delivering at the distribution point the required volume of water for the south ‘auwai kuleana users,” he told The Maui News.

Wailuku Water Co. did not submit testimony or attend the meeting Tuesday, and commissioners queried staff about the company’s stance. Staff declined to speculate where the company stands on the issues.

Chumbley said Thursday that the item was listed as an informational-only briefing and the company was not given a copy of the presentation until 18 hours before it started.

“The water commission’s own protocols and requirements require that you sign up for verbal or written testimony 48 hours in advance,” he said. “We were not able to follow their own rules and participate.”

Chumbley added that the company will be prepared to submit both written presentation and testimony ahead of the Oct. 19 meeting that “will demonstrate clearly without a doubt that we are in compliance with both the IIFS (interim in-stream flow standards) and the decision and order to deliver water to the kuleana users.”

In the past, the company has pointed to severe drought, vandalism of the system, inconsistent gauging and other issues that complicate water delivery.

Saying that the hui and community members are not merely complaining but rather looking for resolve, Pellegrino submitted proposed solutions to staff, which were praised by commissioners Tuesday.

Proposals include modifying an emergency release gate from Reservoir 1 to allow water to flow directly into kuleana ‘auwai, reduce take of water into the unlined Reservoir 1 and provide water directly to Waikapu Properties, address take of water by area permittee Clayton Suzuki and backwash by sand filters back into the ‘auwai and allow kuleana users to restore the original kuleana ‘auwai that connects directly to Waikapu Stream.

Commission Deputy Director Kaleo Manuel confirmed during the meeting that the hui’s solutions emphasize reducing waste, prioritization of users and other facets — all of which are “in alignment” with the decision and order.

Old water delivery systems built to feed thirsty plantations are rife with present-day challenges.

On one hand, they’re hailed as engineering marvels, transporting water over miles through ditches, siphons and tunnels without the use of electricity. On the other hand, they were employed to drain streams and rivers from natural flows, damaging the ecosystem and leaving downstream Native Hawaiian farmers and cultural practitioners without vital resources.

To this day, plantation-era water delivery systems around Maui help provide drinking water to county users. However, water management hurdles have intensified with more recent extreme weather conditions brought on by climate change.

Commission Chairwoman Suzanne Case said during the meeting said that Na Wai ‘Eha is a complex system that connects a lot of people, and it’s further complicated by the drought situation.

“I’m just going to say that as the climate changes and the earth warms and the distribution of water gets more random through drought and flood cycles, this is just a little microcosm of what’s happening all over the planet in terms of the impact of relationships between users and distributors of water,” she said. “That’s part of an overarching complication that we just have to do our best to moderate as we are required to do and able to do.”

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

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