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Na Wai ‘Eha ruling prioritizes sustainability and culture

COUNCIL'S 3 MINUTES

After over 20 years of legal proceedings, the Hawaii Commission on Water Resources Management issued a decision and order on June 28 prioritizing sustainable water resource management and Hawaiian culture for Na Wai ‘Eha, which encompasses all waters from Waihee, Waiehu, Wailuku and Waikapu.

The landmark decision establishes the state’s responsibility to uphold the public trust doctrine by prioritizing the ecosystem and cultural practices, including traditional taro farming and other practices.

On July 20, my Agriculture and Public Trust Committee received a presentation on this historic case and the legal battle that the community has tenaciously, yet patiently, fought for more than two decades.

The battle resulted in a decision shifting state policy from “plantation water management” to “balanced water management,” as stated in the water commission’s news release.

“This is a new era of water use and management,” according to the executive summary of the decision and order. “Behavior shaped in times when values were not in balance must give way to more sustainable and just policies and practices.

“This includes optimizing resource storage and efficient delivery, implementing more efficient irrigation and farming techniques, as well as aligning our priorities with the collective good rather than self-interests.”

“This order works to establish a new paradigm for water resource management and collaboration in Na Wai ‘Eha,” said Kamanamaikalani Beamer, who left the water commission following the Na Wai ‘Eha ruling after eight years of service. “We affirmed that kalo cultivation is a traditional and customary right in this region, recognized appurtenant rights to wai (water) and ensured connectivity of streams to enhance biota and ecosystems services.”

The water commission strove to honor past mediated settlements and Supreme Court rulings by establishing stream flows required to offer a higher degree of habitat protection and providing sufficient divertible flow to meet public trust and other reasonable and beneficial uses. It also acknowledges the rights of kanaka maoli and kuleana landowners as superseding all other rights.

The decision and order mandates that 51 percent of available stream flows be allocated to protect in-stream habitat and related benefits, 14 percent for kalo cultivation, 28 percent for beneficial off-stream uses including diversified agriculture, 7 percent for Maui County water uses and just under 1 percent for private domestic use.

Under ancestral Hawaiian water management, the profusion of fresh-flowing water in the streams of Na Wai ‘Eha gave life to an extensive area of wetland kalo cultivation, which supported one of the largest populations on the island.

Throughout the proceedings, cultural experts and community witnesses provided uncontroverted testimony of the system’s decline in productivity over time.

Native Hawaiians’ ability to exercise traditional and customary rights and practices have beem diminished by the lack of freshwater flowing in the streams and into nearshore waters.

Hawaiian cultural use of water is based upon a value system of sustainability and a healthy ecosystem, but inadequate water has undoubtedly had a detrimental impact in these areas, hurting the perpetuation of our culture and people.

The return of water to the streams and connectivity of mauka to makai enhances our entire ecosystem, which will provide an essential foundation for the continuation of Hawaiian cultural practices and way of life.

Hawaiian culture is based on wai. It feeds not only the body, but the spirit. When water is taken, it affects not only the ability of Hawaiians to provide for themselves but also damages the spirit of a people.

This long-awaited decision brings justice for native Hawaiians, setting water free to once again cultivate kalo, which will nourish the Hawaiian spirit and protect the perpetuation of our culture.

While this is a time for celebration, it’s also an opportunity for all decision-makers — including myself, my colleagues on the council and our partners in the county’s executive branch — to recommit to our own responsibilities under the public trust doctrine to ensure the most beneficial uses of our precious water resources.

Maui Nui, like all of Hawaii, is rooted in Hawaiian culture, and when we protect and prioritize our culture and people, we all win. For if we are to put a poi board and pounder in every household, then we will need to grow more kalo.

* Shane M. Sinenci is chair of the council’s Agricultural and Public Trust Committee. He holds the council seat for the East Maui residency area. “Council’s 3 Minutes” is a column to explain the latest news on county legislative matters. Go to mauicounty.us for more information.

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