Thursday’s decision by the Commission on Water Resource Management on allocating the use of water from four Maui streams has some experiencing déjà vu.

“This is a replay of the Waiahole case,” said Earthjustice attorney Isaac Moriwake, who represents two community groups seeking to restore flow to Na Wai Eha, the “four great waters” of central Maui diverted more than a century ago to sugar plantations. “It’s almost surreal that the Commission hasn’t learned a thing.”

Commissioner Lawrence Miike also drew parallels to Waiahole in writing his dissent. He noted that the decision in regard to Hawaiian Commercial & Sugar (HC&S) gives “absolute priority to one of the commercial users” when the Hawaii Supreme Court previously found in the Waiahole case that “the public trust has never been understood to safeguard rights of exclusive use for private commercial gain.”

In the landmark Waiahole Ditch case, Native Hawaiians and small farmers sought to restore windward Oahu streams initially diverted for sugar cultivation on the leeward side. The state Supreme Court twice rejected the Commission’s decisions on appeal, saying the panel had failed to return sufficient water to meet public uses on the windward side.

Earthjustice similarly plans to appeal the Commission’s decision to return 12.5 million gallons per day (mgd) to Waihee River and Waiehu Stream–less than a quarter of the total flow of 60 mgd to 70 mgd–and none to ‘Iao and Waikapu streams. The rest of the water is currently being diverted by HC&S, a subsidiary of A&B Inc., and Wailuku Water Company.

In a written statement, HC&S general manager Christopher Benjamin said the decision “will result in significantly less water available for farming and it will increase our operating costs, but it is dramatically improved from the initial recommended D&O [decision and order].

That April 2009 order, which recommended returning 34.5 mgd to the streams, followed 10 months of hearings presided over by Miike, who also served as hearings officer in the Waiahole case.

But the Commission on June 10 dramatically altered the recommendation, finding “there must be a balancing” when the needs of both users and natural resources cannot be fully met.

Miike sharply dissented, writing that the “majority has failed in its duties under the Constitution and the State Water Code as trustee of the state’s public water resources.”

The water flows set by the Commission fail to adequately protect Native Hawaiian rights and natural resources and “do not qualify as ‘restorations,’” he wrote.

Commission Chairwoman Laura Thielen, who also heads the state Department of Land and Natural Resources, issued a statement urging Maui “to develop alternative sources of water, reclamation and conservation” and noted that there simply isn’t enough water to go around.

Maui Mayor Charmaine Tavares concurred. “The Water Commission cannot hope to please everybody when making a decision of this magnitude, particularly when there is not enough water to satisfy all of the demands for it,” her statement read.

But Moriwake said the Commission caved in to political pressure from HC&S, which claimed the loss of water could prompt it to close down Hawaii’s last sugar plantation and eliminate 800 jobs.

In its decision, the Commission did criticize HC&S for its all-or- nothing rhetoric, and Miike wrote in his dissent that the plantation had failed to provide an economic analysis to substantiate its “doomsday scenario.”

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