Ka Wai Ola - Office of Hawaiian Affairs, Volume 29, Number 9, 1 September 2012 — RENEWED HOPE OR MAUI'S 4 GREAT WATERS [ARTICLE+ILLUSTRATION]

RENEWED HOPE OR MAUI'S 4 GREAT WATERS

By Harold Nedd

In the wake of the landmark water-rights ruling from the Hawai'i Supreme Court, a broad-based allianee of farmers, environmentalists and others has been buzzing about the significance of the legal victory for an electrified Native Hawaiian community. Anxious anticipation from nearly a decade of hearings and legal maneuvering in the Nā Wai "Ehā case has given way to exuberant celebration since the state's high court provided some desperately needed clarity in the bitter fight over water rights in the central valley of Maui. The Aug. 15 court ruling against the Hawai'i Commission on Water Resource Management is expected to help cement the status of Hawaiian culture and traditional practices as a legal requirement when decisions are made

about whether to allow a sugar plantation to divert nearly all the water from four major streams for its operations. Now, as Native Hawaiian farmers and others, in a eoalition with environmentalists, pivot toward the next steps in their battle over water rights, they want the water back in all of the Nā Wai "Ehā streams to help restore the natural habitat as well as to cultivate such traditional Hawaiian root crops as kalo, gather native stream resources, and exercise spiritual practices - whieh all require fresh flowing water. "This ruling is historic on a number of levels," said Kapua Sproat, the attorney who is credited with initiating the Nā Wai "Ehā case in 2003 as a lawyer with EarthJustice, a nonprofit environmental law firm in Hawai'i. "It vindicates the hard work of community groups that are standing up for their natural and cultural resources. It recognizes and vindicates their longstanding efforts to do what the

water commission has a responsibility to do. More importantly, it sends a message that the court won't stand for political gamesmanship and that Native Hawaiian rights and practices

have to be respected so that our culture ean survive and thrive." The high-court ruling was prompted by an appeal of a water commission decision in June 2010 to restore little or none of the stream flows diverted by two private eompanies - the Hawaiian Commercial & Sugar H Co., whieh is a subsidiary of Alexander & Baldwin Ine., and the Wailuku Water Co., whieh is the remnant of the now-defunct Wailuku Sugar plantation. The appeal was filed by Maui community groups Hui o Nā Wai 'Ehā and Maui Tomorrow Foundation, whieh were represented by EarthJustice. The Office of Hawaiian Affairs also appealed the decision. The court ruled that the commission failed to give proper consideration to the rights of Native Hawaiians and the puhlie to the flowing streams. The court also ruled that the water commission needed to further explore credible altematives to draining the streams, including perhaps eliminating inefficiencies, recycling wastewater or using non-potable wells.

All told, the court sent the case back to the water commission to redo its decision. "While we celebrate that the Hawai'i Supreme Court agreed with our position, we're in this for the long haul," Sproat said. "We are not asking for charity from the water commission; we are asking for what the law requires." In a nutshell, the law requires the water commission to consider the effects of its decision on traditional and customary Native Hawaiian practices in the Waihe'e River and, Waiehu, 'īao and Waikapū streams, whieh together are known as Nā Wai 'Ehā or "The four great waters." It also requires the eommission to consider steps that would protect these practices. Instead, for more than a century, the water commission has been bowing to poliheal

pressure and overlooking the traditional and customary rights of Native Hawaiians, Sproat said. The state water commission declined to comment through a spokesperson. But at the center of the issue is an aging irrigation ditch system built by sugar plantations more than 100 years ago that continues to drain the Waiehu, 'īao and Waikapū streams as well as the Waihe'e River, pitting sugar plantations against taro farmers who want to grow the traditional crop rooted in 35 Native Hawaiian history. Since 2004, B taro farmers and community groups 3P have mobilized to restore water to the ■ area, whose streams, romanticized in Hawaiian songs, was onee identified as the largest continuous area of taro cultivation in Hawai'i. Hōkūao Pellegrino, whose 'ohana owns kuleana land in Waikapū, is among the Native Hawaiian farmers and cultural specialists who have been adversely affected by diverted water from a stream that flows near his family's taro farm. "We want to grow food and support our community," Pellegrino said. "Instead, we have minimal to zero access to water. About 94 percent of the water is diverted." From his perspective, the high court ruling is long overdue and brightens the prospects for Hawaiian water rights. "The issue is that the water commission has never enforced the law to the extent that it should," Pellegrino said. "And the court is telling the water eommission to do its job - go back and find a way to halanee water rights." John Duey, president of Hui o Nā Wai 'Ehā, whieh was formed in 2003 in direct response to concerns about diverted water from streams, said he was so excited about the court ruling that he woke up at 2 a.m. and spent four hours slowly reading the 88-page decision. "It's been a fight worth fighting," Duey said. "It's just incredible that the court has seen the light." Irene Bowie, executive director of Maui Tomorrow Foundation, recalls being drawn to the side of the Hawaiian community on this issue by what she characterized as the unfairness of a large corporation being able to use so mueh of a resource that belongs to the community and be so cavalier about it. "How could we stand by and not take this issue on?" Bowie asked. "It seemed like a very unfair situation that had gone on for too long. My hope is that the ruling will greatly impact future decisions. One large corporation can't have a stronger position in this than the people of the state." Bowie is referring to the Hawaiian Com-

mercial & Sugar Co., whieh was criticized in the Nā Wai 'Ehā case for being allowed to divert more water than it needed from streams at the expense of traditional and customary Hawaiian practices. In a prepared statement, Rick Volner, the general manager for Hawaiian Commercial & Sugar Co., defended his company, saying that the water commission's decision in 20 10 returned substantial water to the streams. He added that the majority of the kuleana users in the Nā Wai 'Ehā area, like his eompany, depend on the continued diversion of water from these streams to meet their needs. He went on to say that the water commission's 2010 decision provided his company with "a fighting ehanee for survival so it ean eonhnue to make its critical contributions to Maui's economy, preserve jobs and keep Central Maui green, both visually and through the generation of renewable energy." In addition, he said that his company employs 800 people on Maui, including a significant number of people of Hawaiian ancestry. "They, and their families, work hard to ensure the continued viability of HC&S as did generations of Maui families that worked at HC&S and are part of Maui's rich history, culture and community," Volner said. "We are optimistic that upon further review by the water commission, the commission will eontinue to strike an appropriate halanee between the needs of HC&S, the community and instreamuses." While the high-court ruling in the Nā Wai 'Ehā case is cause of celebration within the Hawaiian community, the battle stemming from the decision remains far from over, said Isaac

Moriwake, an attomey with EarthJustice. Moriwake said the next step is for the water commission to redo its decision and improve its analysis of the amount of water that should be restored to the streams. He said the community groups don't want to put the plantation out of business but would like to wring inefficiencies out of the operations. For example, the plantation could fix leaks in its dilapidated water system or make sure that it's not unnecessarily over-watering crops, Moriwake said. "The commission has to reset and figure out a procedure for going forward," Moriwake said. How long that will take is anybody's guess. "But it shouldn't take a year," Moriwake said. "This fight is not over. It's just starting; however, there's a resolve that we need to see this through - and we will. We've eome this far, the court has validated what we knew all along and we're marching forward." Jocelyn Doane, senior puhlie policy advocate at OHA, defined the organization's stake in the issue this way : "The Nā Wai 'Ehā decision is a major legal victory for the Native Hawaiian community. Despite constitutional and statutory laws, state agencies often fail to ensure adequate protection, whieh is critieal to the perpetuation of Native Hawaiian culture. For Native Hawaiians, water is life - literally. Native Hawaiian culture lives on and thrives in the traditional practices that tie us to these islands, to our ancestors and to eaeh other. "After the court's decision, we hope that all state agencies, including the water commission, will take their affirmative obligations to preserve and protect traditional and customary practices more seriously." ■

John and Rose Marie Duey of Hui o Na Wai 'Ehaal 'īao Stream.

[?]

Hōkū'ao Pellegrino teaching a group of keiki and their parents how to harvest kalo at a lo'ī.