Victory —
State Water Commission failed to restore stream flows after closure of last sugar plantation
CONTACTS
- Isaac Moriwake, Earthjustice, 808-545-5299 imoriwake@earthjustice.org
- Hōkūao Pellegrino, Hui o Nā Wai ‘Ehā, huionawai4@gmail.com
HONOLULU, HAWAIʻI —
Last Thursday, the Hawaiʻi Supreme Court issued a landmark decision in the long-running water case over Nā Wai ʻEhā, “The Four Waters” of Waiheʻe, Waiehu, Wailuku, and Waikapū in central Maui. In a 134-page unanimous opinion authored by Justice Sabrina McKenna, the court ruled in favor of Maui community groups Hui o Nā Wai ʻEhā and Maui Tomorrow Foundation, who were represented by Earthjustice, and joined by the Office of Hawaiian Affairs (OHA). The ruling overturned the 2021 state Commission on Water Resource Management (commission) decision that failed to return more stream flows to Nā Wai ʻEhā after the closure of the former Hawaiian Commercial & Sugar (HC&S) plantation in 2016. The court sent the case back to the commission to properly restore Nā Wai ʻEhā stream flows to the full extent practicable as mandated by law.
“We are grateful that the supreme court continues to understand that the health and well-being of our community is directly linked to the health and well-being of our ʻāina (land), wai (water), and kai (ocean),” said Hōkūao Pellegrino, President of Hui o Nā Wai ʻEhā. “This ruling once again makes clear that the protection of our streams and kuleana (responsibility to) kalo farmers’ rights is of utmost importance. It further speaks to the resiliency of the Nā Wai ʻEhā community and our commitment to mālama (care for) our water resources, increase kalo (taro) production, and revive mauka-to-makai (mountain to sea) native ecosystems.”
The court agreed with the community groups and OHA that the commission failed to meet its legal duties to restore stream flows following the end of HC&S’s water-intensive sugar operations. In its 2021 decision, the commission essentially retained the existing flow levels that were set while HC&S was still in full operation. The court observed, “Rather than proactively addressing the historic opportunity to restore stream flows,” the commission’s decision “appears to be the result of a passive failure to take the initiative to protect the public trust in the light of HC&S’s closure.”
The court also ruled that the commission did not meet its constitutional duty to protect Native Hawaiian rights dependent on stream flows, such as growing kalo, gathering, and fishing. The court concluded, “While thorough in many respects, the Commission’s final decision still does not evince the ‘level of openness, diligence, and foresight’ that is required where vital public trust resources like water are at stake.”
“When we began this fight two decades ago, Nā Wai ‘Ehā were drained dry for private profit, but this latest ruling by the supreme court further turns the flow of history toward justice,” said Earthjustice attorney Isaac Moriwake. “This win is a testament to the Nā Wai ‘Ehā community, including many kupuna (elders) who join us in memory and spirit, who continue to make history by standing for a more pono (just) water future.”
The court’s opinion is the latest historic ruling from Hawaiʻi’s highest court upholding the fundamental legal principle that water resources like flowing rivers and streams are a public trust requiring priority protection under the law. The opinion builds on the court’s long line of precedent over decades, including the Waiāhole Ditch case on Oʻahu in 2000 and the court’s previous ruling in the Nā Wai ʻEhā case in 2012. The court’s decision comes almost 20 years to the day when the Maui community groups, represented by Earthjustice, initiated legal proceedings over Nā Wai ʻEhā on June 25, 2004.
“For two decades, Maui Tomorrow has been proud to stand with the water protectors of Nā Wai ʻEhā,” said Albert Perez, Director of Maui Tomorrow Foundation. “We are grateful that the Hawai‘i Supreme Court agrees that streams need to have enough water to support their life cycles, and that hard working kalo (taro) farmers need to have water in their loʻi (wetland fields). We look forward to working with the water commission to implement the court’s decision.”
In addition to its ruling on stream flows, the court also rejected various challenges by large water users against the commission’s decisions on their water allocations. The court upheld the commission’s decision to restrict the amount of stream water allocated for two golf courses. The court rejected the argument by Mahi Pono, the company that bought HC&S’s lands, that it was entitled to more water than the commission allocated for diversified agriculture. And the court denied the objections by Wailuku Water Company, a former plantation now in the business of selling stream water, which opposed the commission’s authority to regulate the company’s operations.
“The court confirmed that the state is in no way obligated to give away public water for private profit, including sacrificing streams to water golf turf,” said Moriwake. “In this era of climate change, these rulings send a clear and strong signal for other critical water management decisions to come, including in West Maui.”
Further Background and History
Nā Wai ʻEhā, or Maui’s “Four Great Waters,” include Waiheʻe River, Waiehu Stream, Wailuku River, and Waikapū Stream, and the surrounding watersheds extending from the mountains to the sea. The Nā Wai ʻEhā region in central Maui was the island’s historical epicenter, supporting the largest continuous region of wetland kalo cultivation in all of Hawaiʻi. This land became ground zero for colonization and the plantations’ taking of stream and ʻauwai (traditional irrigation channel) flows as private property. Twenty years ago, history came full circle when local community groups, in partnership with Earthjustice, embarked on their legal campaign to reverse the plantation legacy of water diversion and privatization and restore local ecosystems and Hawaiian cultural practices that depend on free-flowing rivers and streams.
In 2004, Hui o Nā Wai ʻEhā and Maui Tomorrow Foundation, represented by Earthjustice, took legal action to restore stream flows and stop the illegal hoarding of water by Wailuku Water Company (formerly Wailuku Sugar) and HC&S. The case went all the way to the Hawaiʻi Supreme Court, which in 2012 overturned the commission’s 2008 decision to leave the streams mostly dry. A historic settlement in 2014 restored flows in all four streams for the first time in 150 years. Subsequently, the HC&S plantation’s closure in 2016 and the first-ever permitting process for surface water led to the most comprehensive adjudication of water rights in Hawaiʻi’s history. The commission issued its decision in 2021, which was appealed to the Hawaiʻi Supreme Court again. The court heard oral arguments in this appeal in December 2023.
The newly restored flows to Wailuku River in October 2014. (Kapua Sproat / Earthjustice)
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Original article on Earthjustice.org can be found here.
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