Ka Wai Ola - Office of Hawaiian Affairs, Volume 27, Number 3, 1 March 2010 — Streams [ARTICLE+ILLUSTRATION]

Streams

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Hawaiian myth and mele celebrate Central Maui's streams for onee sustaining a thriving community with fresh water that fed the island's largest continuous expanse of wetland kalo cultivation and a mauka-makai migratory corridor for 'ōpae, hlhlwai and other cherished aquatic k species. Known as Nā Wai 'Ehā - the Four Waters, L the region is today a hotly contested battlefield for water rights and land use. An extensive ditch system built by plantations during the boon days of sugar continues to drain dry the waters of 'īao, Waiehu andWaikapū streams andWaihe'e River, while native and community groups have banded together against the business interests to Hk regain the waters that they say are essential to their way of life. "Mostly it's rocks in the riverbed now," said Diannah Kaleilehua Lai Goo, who holds several acres of kuleana lands in Nā Wai 'Ehā under a Royal Patent issued to her ancestors at the time of the Great Mahele of the mid- 19th century. She recalls as a child that her t ^ ■ -T' family, like others in Central

Maui, kept a lo'i by relying on a plantation ditch, but whenever the "plantation turned the key," the water stopped. Her elders fought for more water but eventually moved the family to the nearby town, returning to their 'āina only for visits. Goo, who is now 74, still goes back to the kuleana land, eking out just enough water from an irrigation pipe to keep some kalo from withering. Still she struggles with intermittent water stoppages from two companies that divert water for commercial use. Her makai neighbors on the sloping mountain say they get even less from the company ditches and barely anything from the streams. Eight years ago, they convinced her to join themin a community fight to help lo'i and stream life live again. Goo agreed to be a witness in the case. "I heeame really peeved about what has happened," she said, recalling the day she was crossing the swinging bridge in Waihe'e and heard her nephew calling to her, "Aunty, I am going to dive!" She looked up to see him standing over a manmade ditch that runs into the plantation's tunnel. "It hit me all at onee and I got tears in my eyes, thinking the (natural) rivers are gone. Our waters are being treated like a commodity, but they are really the staff of life." Last April, Goo's contention got significant support from the state Commission on Water Resource Management, responding to the petition filed in 2004 by community groups Hui o Nā Wai 'Ehā and the Maui Tomorrow Foundation with support from the Office of Hawaiian Affairs. Commission hearing officer Dr. Lawrence Miike issued a recommendation to restore to Nā Wai 'Ehā 34.5 million gallons of water per day, roughly half the diverted flow. Miike's proposal now faces hnal approval by the full water commission, whieh must consider Miike's 205-page recommendation along with objections filed by parties in late 2009. There is no deadline for the hnal decision, although insiders say the commission will likely act soon. 'WAIĀHOLE ON STEROIDS' The Nā Wai 'Ehā administrative trial on Maui spanned a lengthy six months during 2007 to 2008 and encompassed testimony of 85 witnesses. It has stirred lasting controversy on water rights reminiscent of the landmark Waiāhole Ditch eontested case. That dispute began almost two decades ago with Windward O'ahu farmers asserting that their streams ran low and their taro cultivation suffered as a result of eight decades of plantation water diversion to the Leeward side. For the first time in Hawai'i's history, the water commission ordered that some water be restored fromplantation agriculture to streams of origin, though the Windward groups objected that their alloeahon was not enough and appealed the commission's decision. In 200 1 , the state Supreme Court sided with Windward interests, saying the water commission must follow the state Constitution and water code in recognizing water as a puhlie trust resource protected for "the heneheial and reasonable" uses of all people - including for the customary and traditional Native Hawaiian practices, such as kalo cultivation and subsistence and cultural gathering practices. This is significant because it strongly affirms the legal basis of water management for the eommon good and requires private parties seeking to use water for commercial gain to prove that they are not interfering with puhlie trust purposes. In his findings of fact, Miike relied heavily on testimony from 40 Native Hawaiian cultural experts and leaders, including OHA Chairperson Haunani Apoliona, whom he quotes as saying that return of Nā Wai 'Ehā waters will "result in the betterment of the eonditions of native Hawaiians and Hawaiians by restoring spiritual well-being and state of pono ... (goodness, righteousness, halanee) to the people and communities of Nā Wai 'Ehā." As in the Waiāhole Diteh case, native and community groups are buoyed by the prospect of regaining access to fresh stream

water. "It's been emotionally compelling hearing people who have been struggling for so long to tell their story about how the diversion affected their way of life," said Pam Bunn, an attorney for OHA. As mueh as it mirrors Waiāhole, however, Nā Wai 'Ehā is turning out to be an even bigger testing ground for water rights. In the Waiāhole case, the water-diverting O'ahu Sugar Co. went defunct, abandoning the ditches and essentially leaving water available for other users. By contrast, the two companies that eonhnue to divert Nā Wai 'Ehā streams are seeking to keep water for active commercial enterprise, purposes whieh eompany representatives argued in the trial should also eome under the state's trusteeship in serving the "best eeonomie and social interests of people." "Considering all that is at stake, Commissioner Miike has called this case the 'Waiāhole on steroids,'" said Isaac Moriwake, attorney for Earthjustice representing community groups in Nā Wai 'Ehā. STREET-SIDE DEMONSTRATIONS One company in the Nā Wai 'Ehā case, Wailuku Water Co. LLC, or WWC, a spin-off of the defunct Wailuku Sugar Plantation, sold off its landholdings but continues to maintain its ditch system for its new business - the commercial delivery of water to customers, such as Maui County, two West Maui golf courses, Wailuku Manor Estates and notably Hawaiian Commercial & Sugar Co., or HC&S. HC&S, the other diverter in the Central Maui case, uses approximately 50 million gallons of water per day from Nā Wai 'Ehā streams. Operating Hawai'i's sole surviving sugar plantation, HC&S today has access to approximately double the amount of water from the streams since becoming the beneficiary of WWC's "surplus" water in the 1990s. Even with the added water, HC&S hasn't been able to improve its bottom line. HC&S has operated at a $45 million loss over the last two years. HC&S and WWC say the proposed return of 34.5 million gallons of water per day to streams is too mueh and will sink their businesses. "The eeonomie harm outweighs biological benefits that are unlikely to be achieved, given the specific features of the four streams," HC&S general manager Christopher Benjamin said in an e-mail to Ka Wai Ola. Benjamin said the proposed Nā Wai 'Ehā restoration would cause HC&S to lose 1,500 farmaeres, inerease eosts for another 3,800 aeresleading to a 5 percent revenue loss that would wipe out company profits. Benjamin also argues that reflowing the streams would hurt those who have been getting water from the ditch system for decades, including Maui County and kuleana land holders. Most significantly, given the state's high unemployment, he said that Miike's proposal would cost jobs. "HC&S provides jobs to some 800 Maui residents, many of whom are of Hawaiian ancestry. Their livelihoods and lifestyles depend on HC&S staying in business," Benjamin's e-mail said. In support of company concerns, the ILWU, whieh represents HC&S workers, has staged street-side demonstrations to protest Miike's recommendation. The puhlie spectacle has divided many in the tight-knit Maui community. "It's a terrible thing to lose a job from a company you have worked for all your life, but HC&S is unnecessarily playing on people's fears," said Rose Marie Duey, a Nā Wai 'Ehā resident descended from kuleana landholders in the area. At a recent union rally, she saw her cousin waving a sign directed at her group that said, "Share the water." "I told him: 'Come see my stream. There is no water there to share.' " The man quietly

put down the sign and walked away, she reports. Community members say the financially troubled HC&S has plans to pull out of the sugar industry, raising the likelihood that workers would be laid off for reasons unrelated to stream restoration. HC&S is "raising sympathy for the heritage of sugar, when they are really moving into development, " said Duey. In fact, the Nā Wai 'Ehā trial highlighted HC&S' plan to build a water-treatment plant near the Wai'ale Reservoir. An EIS for the proposed project indicates the plant would supply Maui County and a housing development of Alexander & Baldwin, HC&S' parent company. The EIS is on hold pending the outcome of the water board's hnal decision in the case. Benjamin, the HC&S manager, said A&B's recent waiving of a development incentive for whieh it was eligible underscores its commitment to agriculture over urbanization. Benjamin also added that the company, whieh provides Maui Electric Co. with 7 percent of its power through burning of sugar by-product bagasse, has long been pursuing a transition into renewable energy farms that he maintains will contribute to Maui's longterm energy security. But he calls sugar the "short-term anchor" that will enahle the transition. The puhlie tension over Nā Wai 'Ehā is a new experience for some kūpuna like Diannah Goo, whose father gave 52 years of service to a sugar plantation as a truck driver. Additionally, her aunt gave the OK for the plantation to construct cement diversions on her 'īao Stream kuleana land. Back then, Goo said, "the plantation people had the money and expertise to run businesses well, but today they are thinking profit first." Goo had a day in court at the Nā Wai 'Ehā trial, where she pointed to the CEO of Wailuku Water Co. and told the commissioners, "He is stealing my water and yours." Goo was referring to Avery Chumbley, who declined to comment for this story. Chumbley has been a major target of community critics who object to his company's commercial use of a resource that they say is in dangerously low supply. "Wailuku Sugar seemed to think it was clever in converting a de facto elaim of water rights into an ability to sell water for a profit. This clearly turns the puhlie trust doctrine on its head," said Moriwake, the Earthjustice attorney. Hōkūao Pellegrino, whose 'ohana holds kuleana land in Waikapū and 'īao Valley, has tried to restart wetland kalo cultivation in the area as part of a self-sufficiency model reconnecting Hawaiian families with their traditional dietary staple, but he's found it tough going because of insufficient water. "At the time of the Great Mahele, there were over 1,200 lo'i in Waikapū," he said. The 'ōpae his ancestors onee gathered there is also gone, because the diversion of streams cut off the species' migratory path. Stream water is equally essential for the growth of Hawaiian medicinal plants, such as māmaki. "This is why fresh water is the kino lau, the manifestation of the primary Hawaiian god Kāne," he said. WATER NEEDS VS. USAGE The Nā Wai 'Ehā case began in 2001 after a community group pushed for a special management designation for the island's diminishing "īao aquifer, meaning the state would take control and require all users, including commercial companies to have permits and comply with the state water code, whieh puts the burden on users to establish a minimum water need. The designation, made official in 2003, was the legal hook that prompted OHA to step into the case after finding that Maui

County's permitting requests didn't recognize Native Hawaiian water uses covered by the puhlie trust. The county eventually rewrote its permits to support native water rights and joined the legal fight on the side of OHA and the community to regain mauka-to-makai flow of the Four Waters. During the trial, Miike found that HC&S was violating the water code by significantly wasting water. In his hnal recommendation, Miike cited an admission from an HC&S official who said seepage through deteriorated plantation ditch infrastructure amounted to 9 million gallons of water per day. In addition, Earthjustice attorney Koalani Kaulukukui said, "We had testimony from the commission's own water expert, whieh shows HC&S's actual need is 5,000 gallons per acre per day, while the company reported that their use was approximately double that amount." Based on trial testimony, Miike has said that HC&S would be able to make up the 34.5 million gallons of water proposed for restoration to the streamby doing two things: upgrading the ditch system - especially the Wai'ale reservoir, and resuming pumping of Well No. 7, an enormous plantation structure the company built in 1947 and then abandoned in the 1990s after it began receiving water from WWC. Benjamin, the HC&S spokesman, counters that the nonpotable or brackish water from Well No. 7 would result in "yield declines," whieh would be catastrophic to the business when combined with the costs of Miike's recommended capital improvements plus the recent loss of 12 million gallons per day of water reflowed into east Maui streams under a separate legal agreement. One thing all parties in this case might agree on is that the sheer mass of data at the Nā Wai 'Ehā trial - 600 exhibits in all, was unprecedented. Agronomists, hydrologists, economists and other scientists lined up alongside cultural practitioners to bolster claims. For the first time, under a U.S. Geological Survey study funded by OHA, scientific evidence determined that mueh more water is needed for kalo cultivation than previously believed. Another effect the case has had - even in advance of the hnal decision - is to focus more puhlie attention on its original trigger - the 'īao aquifer - a principal source of Maui drinking water now in crisis as a result of drought conditions. "It is close to its maximum yield, but will be recharged if water comes back into the streams," said Earthjustice's Koalani Kaulukukui. For Hōkūao Pellegrino, the kalo farmer, the case has unfairly pitted economy against the environment. "We're not saying we ean live off of kalo and nothing else, because we can't, but we also know that sugar has never sustained our community. No job - no matter how important it seems, should eome at the cost of a resource that is essential," he said. Looking back at history, Pellegrino believes that there are important lessons - like those underlined in the Waiāhole Ditch case, about keeping the care of resources in the hands of people who depend on themdaily. He said: "When Hawaiians lost their waterways to plantation ditches, it was as detrimental to the native culture as loss of land. Without water, the land had no value. Our kūpuna were not able to feed themselves, and they had to move away." Pellegrino is hoping that the hnal word from the water commission will help him prove that comebacks in nature and culture are intricately linked and always possible. ■

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Waikapu Diversion near a dam takes away all mauka water, leaving a portion of the Waikapu stream dry. - Courtesy photo