STATE WILTS TO PLANTATION PRESSURE,
LEAVES MAUI STREAMS WITH MINIMAL OR NO FLOW
Dissenting Water Commissioner declares a failure of state’s public trust duties
Maui, Hawai‘i -- Today, the State of Hawai‘i’s Commission on Water Resource Management (Commission) issuedits final ruling in the long-running battle to restore flow to fourmajor streams on Maui known as Nä Wai ‘Ehä, or “The Four Great Waters”of Waihe‘e River and Waiehu, ‘Ïao, and Waikapü Streams. The finaldecision was issued more than a year after a proposed decision in April2009 recommended restoration of 34.5 million gallons a day (mgd) to thestreams, or about half of the total stream flow of 60 to 70 mgd. In thefinal decision, a majority of the Commission, with one Commissionerdissenting, decided to reduce the amount of restoration to only 12.5 mgdand leave two of the four streams, ‘Ïao and Waikapü, in theircompletely dewatered state, without restoration of any flow. This 12.5mgd is even less than the 16 mgd one of the diverters, HawaiianCommercial & Sugar (HC&S), a division of Alexander &Baldwin, Inc. (A&B), had argued as a last-ditch alternative to theinitial recommendation.
“This is a miscarriage of justice, and it will not stand,” said Earthjustice attorney Isaac Moriwake, “In the 21st century,the Commission majority is still letting plantation politics, ratherthan the law, rule our most precious resource.” Earthjustice representsMaui community groups Hui o Nä Wai ‘Ehä and Maui Tomorrow Foundation,who initiated this legal action six years ago, in June 2004, to restoreflow to Nä Wai ‘Ehä streams to support native stream and nearshoreresources and community uses such as traditional wetland kalo farming.
The dissenting Commissioner, Lawrence Miike, J.D., M.D., issued a detailed and strongly worded opinioncriticizing the majority for turning the Commission’s public trustresponsibilities “on their heads,” leaving the streams mere “leftovers,”and treating streams as “reservoirs for future offstream uses.” “Bythis decision, the majority has failed in its duties under theConstitution and the State Water Code as trustee of the state’s publicwater resources,” he concluded.
Commissioner Miike served as the Hearings Officer in this case and presided over the lengthyadministrative trial that extended from December 2007 to October 2008and involved dozens of witnesses and hundreds of pages of exhibits andbriefs. He is also the most experienced member of the Commission,having also served as the Hearings Officer and Commissioner in thelandmark Waiähole Ditch case on O‘ahu, in which theHawai‘i Supreme Court strongly reaffirmed that flowing streams are apublic trust resource and reversed the Commission twice for failing toprovide sufficient projection for public rights and uses in instreamflows. Commissioner Miike cited the Court’s rulings and his experiencein theWaiähole casein his dissent.
John Duey, President of Hui o Nā Wai ‘Ehā explainedthat “Hui members are shocked that the Commission majority re-wrote thefinal decision based on politics, not the law, and over the strongobjection of the only Commissioner to sit through months of proceedingsand review all of the evidence. Even though the Commission majority wasswayed by plantation pressure, we believe the law and history willvindicate us.”
The Nä Wai ‘Ehä streams are perennial waters that traditionally supported a vibrant native aquatic ecosystemand a Native Hawaiian community cultivating the largest continuous areaof wetland kalo fields in the Hawaiian Islands. Currently, two privatecompanies drain the streams dry: (1) HC&S, and (2) Wailuku WaterCompany (WWC), the remnant of C. Brewer & Co.’s former Wailuku Sugarplantation, which sold all its former farmlands for development and isnow pursuing the business of selling the diverted stream water to thepublic.
This case has drawn many comparisons to the Waiähole case. Like Waiähole, Nä Wai ‘Ehäinvolves local community groups seeking to ensure lasting protection forstreams in the face of unchecked demand for industrial agriculture andurban development. Unlike in the Waiähole case, where the former O‘ahuSugar plantation land was converted to diversified agriculture, here,the former Wailuku plantation sold off its lands and has sought to keepcontrol of the water as an independent source of private profit.
With the Commission’s final decision, this case has acquired another, dubious parallel to Waiähole. In the Waiähole case, the Hawai‘i SupremeCourt, in addition to ordering better protection of stream flows,chastised the Commission’s proceedings as being tainted by externalpolitical pressure at the eleventh hour. Similarly, in this case,during closing arguments on the Commission’s proposed decision inOctober 2009, HC&S dispensed with any legal argument and instead hadits manager and A&B’s Chief Financial Officer, Chris Benjamin,deliver testimony lacking any connection to the evidence in the recordand threatening the shutdown of the plantation and layoffs of all itsworkers.
“We are very disappointed by this short-sighted political decision that caters to corporate interestswhile denying good environmental stewardship and the rights of NativeHawaiians,” said Irene Bowie, Executive Director of Maui Tomorrow. “Inthis time of long-term drought when our aquifers are so desperately inneed of replenishing, this decision is even more frustrating.”
“Ten years after Waiähole, the majority of the Commission hasn’t learned a thing, except to find new ways toshort-change communities fighting for public rights to water.” saidMoriwake. “In the end, political influence and expediency cannotprevail. We will not rest until justice, and the waters of Nä Wai ‘Ehä,flow for present and future generations.”
