Ka Wai Ola - Office of Hawaiian Affairs, Volume 38, Number 8, 1 August 2021 — A Big Step Forward and a Half Step Back [ARTICLE+ILLUSTRATION]

A Big Step Forward and a Half Step Back

J MO'OLELO NUI ^ COVER FEATURE '

Keiki participate in an October 2014 rally in support of Nō Wai 'Ehō. These four famous streams created an abundant wetland that was onee the largest area of wetland kalo cultivation in Hawai'i. When corporate sugar farming began in the 1860s, water from the streams was diverted, drying out the wetlands, destroying hundreds of acres of lo'i kalo, and irrevocably damaging the ecosystem. - Photos: Ruben Carrillo

Questions Remain After Water Commission Issues Long-Awaited Decision on Na Wai 'Eha

By Trisha Kehaulani Watson-Sproat Civil rights activist Martin Luther King Jr. onee said, "the arc of the moral universe is long, but it bends toward justice." On June 28, the steadfast march of Maui kalo farmers fighting for justice in Hawai'i took an important step forward when the Hawai'i Commission on Water Resource Management (Commission) issued a long-awaited decision on the "Nā Wai 'Ehā Contested Case." The June decision, rendered by the Commission via a staggering 362-page document, offers them a partial victory. Office of Hawaiian Affairs (OHA) Board Chair Carmen "Hulu" Lindsey noted that, "The recent decision, after 17 long years, finally vindicates the rights of many kalo farmers and cultural practitioners who have been seeking to obtain legal access to water as provided for under the constitution, water code, and puhlie trust. "The recognition of their rights may also help to set a precedent that clears the path for other eommunities to seek water management area designation and the vindication of their rights as well as that of the puhlie interest in streams and aquifers that have been

all but monopolized by private corporations for generations." However, Lindsey also noted that given the magnitude and complexity of the case, and the involvement of so many parties - from small-scale kalo farmers and gardeners to developers and other corporate landowners seeking a elaim to the waters of Nā Wai 'Ehā - a handful of issues and concerns remain. Indeed, despite the important step forward, upon reviewing the Commission's decision, community advocates Hui o Nā Wai 'Ehā and their legal representative, Earthjustice, immediately expressed eoneem that, despite the priority given to subsistence famers, the decision would not return enough water to Nā Wai 'Ehā streams. According to Hui o Nā Wai 'Ehā President Hōkūao Pellegrino, "the Decision and Order (D&0) doesn't go far enough to address the importance, implementation and enforcement of Water Use Permits." In a surprise move, on June 30, just two days after the decision was released to the puhlie, the Commission issued a 22-page amendment to the original decision. Among other things, the amendment reduced the amount of water allocated to diversified agricultural company Mahi Pono in the original decision - from 15.65 million gallons per day (mgd) to 4.98125 mgd - despite a 2019 agreement between Mahi Pono, Hui o

Nā Wai 'Ehā and OHA that Mahi Pono should receive 11.22 mgd. Within short order, stakeholders filed various motions seeking clarification or partial reconsideration of the Commission's filings. Uie Struggle for Nā Wai 'Ehā Nā Wai 'Ehā refers to Maui's famed "Four Great Waters" - Waihe'e River, Waiehu Stream, Wailuku River (previously known as 'īao Stream), and Waikapū Stream. The streams originate in Mauna Kahālāwai (West Maui Mountains), and this abundant area traditionally served as the primary ritual, polhieal and population center of the island. In pre-contact Hawai' i, these streams were carefully managed. They provided an extensive wetland that supported one of the largest populations on the island of Maui. At the time of the Mahele in 1848, approximately 3,000 acres were under cultivation with more than 4,000 individual lo'i kalo. According to Native Planters in Old Hawai'i it was the "largest continuous area of wetland kalo cultivation" in all of Hawai' i. However, the establishment of sugar plantations on Maui in the 1860s resulted in a massive diversion of water from these streams to supply water for the plantations. Stream levels dropped dramatically, drying out the once-abundant wetlands, wrecking havoc

on the ecosystem, and making it impossible for many Native Hawaiians farmers to continue to grow food for their families. For more than 150 years, traditional famers in the region have struggled to regain their rightful share of Maui's precious water resources. And while there have been some gains, corporate agriculture's monopoly on the water flowing from Nā Wai 'Ehā continued. In 2003, kalo farmers and other community members formed Hui o Nā Wai 'Ehā in an effort to address the negative impacts caused by dewatering of the streams by corporations and to advocate for streamflow restoration. For nearly two decades they have fought through legal actions and administrative proceedings to protect and prioritize water access for lo'i and other subsistence farming. In 2004, Hui o Nā Wai 'Ehā and Maui Tomorrow Foundation, both represented by nonprofit environmental law organization Earthjustice, petitioned the Commission to restore streamflow to Nā Wai 'Ehā, and subsequently filed a water waste complaint with photo documentation of diverted stream water being illegally dumped, rather than returned to the streams. Then in 2006, the same organizations petitioned to establish a water management area that would provide greater state oversight in the use of waters from Nā Wai 'Ehā. This would lead to the designation of the first and only surface water management area in Hawai'i in 2008. OHA, seeing the opportunity to restore mauka-to-makai stream flow and uphold the puhlie trust in water - including Native Hawaiian rights protected under trust - joined in the legal proceedings, and would later provide funding to help kalo farmers and other water use applicants document and assert their rights to water in the newly designated water management area. The legal battle dragged on for more than a decade,

lasting through the 2016 closure of Hawaiian Commercial & Sugar Company (HC&S), and the acquisition of 41,000 acres of its former sugar lands by the continent-based Mahi Pono - whieh then replaced HC&S on their water permit application before the Commission. In 2014, a historic settlement agreement was reached between the parties regarding the initial petition to restore streamflow to Nā Wai 'Ehā, whereby mauka-to-makai flow would be restored to all four waters for the first time in over a century. However, implementation of the agreement would continue to be a challenge, and the issue of who should receive water, and in what quantities, remained unresolved. In 2019, after extensive vetting and negotiation, Mahi Pono, Hui o Nā Wai 'Ehā, and OHA announced that they had reached an agreement over Mahi Pono's water usage, with Mahi Pono agreeing to a reduced water allocation - from the 36.29 mgd originally requested by previous landowner HC&S, down to 11.22 mgd. Thirsty Sugar and Destructive Water Diversion Sugar is one of the world's "thirstiest" crops, needing mueh more water than other agricultural crops. Historical documentation shows that Hawai'i's plantations needed as mueh as one ton of water to produce just one pound of refmed sugar. Maui was impacted early by the sugar industry. Foreign businessmen like Claus Spreckels and Charles Brewer (C. Brewer) gravitated towards Maui with its rich valleys and healthy freshwater streams. Settlers began to steer their hnaneial resources and political influence towards building up agricultural activities SEE A BIG STEP F0RWARD ON PAGE 16

Community members line the streets of Woiluku ot o Nō Wai 'Ehō rolly in October 2014. Access to freshwoter is o long-stonding issue for the kupo 'ōino of Moui.

A BIG STEP F0RWARD

Continued from page 15 on Maui and that would heeome the template for other plantations established throughout the pae aina. Modern mapping of the sugarcane lands in the I9th century shows the incredible intensity of land use that sugar production had in central Maui - activities that drew primarily from Nā Wai 'Ehā. As the sugar industry grew, water diversions from Nā Wai 'Ehā and, later, East Maui's watersheds increased. These increases caused corresponding adverse impacts to kuleana landowners and kalo farmers who also relied on the streams and rivers. The more water that was diverted for corporate farming, the less water that remained for subsistence farming. The siphoning of so mueh water from Nā Wai 'Ehā also impacted native aquatic species historically present in the stream, including 'o'opu (endemic freshwater goby), hīhlwai (endemic freshwater snails), and opae (endemic freshwater shrimp). These species, onee abundant food resources for the region, are now scarce. Abundant freshwater flow is also critical to healthy nearshore coastal ecosystems like wetlands and fisheries. It also recharges our drinking water aquifers. Greater Clarification Required As Lindsey and others have noted, the Commission's decision represents a historic and long-awaited step forward in the struggle of farmers and environmentalists to uphold the puhlie trust - including Native Hawaiian rights protected under the trust - with regard to access to the water resources of Nā Wai 'Ehā, whieh may set a precedent for access to water resources throughout the pae aina. The decision is also historic in that it is the first time that the Native Hawaiian traditional and customary practice of kalo farming has been expressly recognized as meriting the highest priority in water use. Another victory for kalo farmers was the rejection by the Commission of a proposal to allow larger diverters of water to reclaim "appurtenant water rights" (see sidebar). Had the Commission approved this proposal, it could have allowed large-scale landowners and "gentlemen estate" developers to start claiming huge amounts of water. However, as noted previously, there are still eoncerns about the decision - for example, the confusion regarding the amount of water allocated to Mahi Pono, as cited earlier. Initially, they were allocated mueh more water than what they had agreed to receive - water that could be returned to the streams to support native species habitat, aquifer recharge and other puhlie benefits. Then in a reversal, the Commission dramatically decreased their allocation helow previously negotiated levels. Adds Pellegrino, "The Commission also continues to struggle with holding diverters like Wailuku Water Company accountable for providing the required

amount of water to Native Hawaiian kuleana kalo farmers with appurtenant rights and who have priority use under the D&0. Twenty days after the D&0 was issued, numerous Native Hawaiian kuleana lo'i kalo farmers in Waikapū were still without water and their crops have dried up and died." According to OHA Puhlie Policy Manager Wayne Tanaka, another major and ongoing eoneem is that the Wailuku Country Estates, whose claimed appurtenant water rights were demonstrably extinguished, was nonetheless awarded a substantial amount of water based on these lost rights. Tanaka also has eoncerns about new requirements adopted in the final decision, that would require all appurtenant water right holders to submit their land deeds going back to the Mahele. 'A requirement like that would also plaee a significant burden on kalo farmers and others who have already established their appurtenant water rights through the contested case proceedings over the past 10 years," explained Tanaka. "Producing over 150 years of deed history to re-validate their right to the water could take a year or more and cost these farmers thousands of dollars eaeh." The laek of clarity surrounding these outstanding concerns must still be resolved, in accordance with the motions that were filed by OHA and other parties. At this time, it is not known how long this will take, or how the ongoing conflict will ultimately be resolved. Despite these setbacks, the community remains steadfast and optimistic. "We're hopeful that we ean work out these important fixes and avoid more twists and turns, including appeals," said Pellegrino. 'After 17 years, we ean do better for our streams as well as for present and future generations who live and farm in Nā Wai 'Ehā. "While a hnal decision may close the decade-long legal process, Hui o Nā Wai 'Ehā will continue to commit itself to advocating for our streams and kuleana kalo farmers, and ensuring the laws set forth are followed well into the future." ■ For information about Hui 0 Nā Wai 'Ehā go to https://www.huionawaieha.org/ and for information about the legal battle go to https://earthjustice.org/fea-tures/background-on-na-wai-eha Trisha Kehaulani Watson-Sproat, J.D., Ph.D., was born and raised on O'ahu. She is thefounder and owner ofHonua Consulting, LLC. Founded in 2003 the company is Hawai'i's oldest and largest Hawaiian-owned cultural resource management flrm. She is married to traditional Hawaiian musician Matt Sproat.