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Pellegrino lo‘i, Waikapu Maui

Reversing the water commission’s order in a stream diversion case, the state Supreme Court emphasizes the duty to serve the public interest.

The Hawaii Supreme Court’s recent decision in a longstanding water dispute goes beyond the issue of how to fairly allocate the flow from four Maui streams. It also underscores a yawning, ongoing disconnect between state law and decisions made by the state Commission on Water Resource Management (CWRM).

In issuing its Aug. 15 decision, the Court unanimously found that the Commission had failed to properly consider the rights of native Hawaiians and the general public in its 2010 order. The Court also found the Commission had not adequately pursued alternatives to diversion, including recycling wastewater, greater conservation and using non-potable well water.

Though the Commission was created to be the people’s champion in protecting water as a public trust resource, it has frequently sided with the corporate interests that divert streams, resulting in protracted court battles and repeated slap downs from the high court. Since CWRM’s inception in 1987, the Hawaii Supreme Court has reversed five Commission decisions–a higher rate of reversals than any other state agency.

In this month’s decision, the Court directed the Commission to re-do its analysis and revisit its decision in the Na Wai Eha case, which has pitted native Hawaiian taro farmers and environmentalists against two companies diverting water from the “four great waters” of Maui: Waihee River and Waiehu, Iao and Waikapu streams.

In its contested 2010 order, the Commission had directed Hawaiian Commercial & Sugar Co. and Wailuku Water Co. to return 12.5 million gallons per day (mgd) to Waihee River and Waiehu Stream–returning less than a fifth of the total diversions of 67 mgd–and none to Iao and Waikapu streams.

At the time, HC&S had claimed that the loss of water could prompt it to close down Hawaii’s last sugar plantation and eliminate 800 jobs.

“Where the Commission’s decision-making does not display a level of openness, diligence, and foresight commensurate with the high priority these [public trust] rights command under the laws of our state, the decision cannot stand,” the opinion states.

The Court also noted that it was taking “this opportunity to expand upon the jurisdictional analysis” from the landmark Waiahole water case, where 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 Waiahole decisions on appeal, saying the panel had failed to return sufficient water to meet public uses and protect streams on the Windward side.

The Court’s latest water ruling was “a revolutionary breakthrough for this community because they’ve been up against such resistance and political roadblocks,” says Earthjustice staff attorney Isaac Moriwake, who joined lawyers from the Office of Hawaiian Affairs in representing Na Wai Eha plaintiffs. “It’s been years of frustration and injustice. They were basically left with scraps, even though their rights are protected by law. Some of our client community members literally broke down in tears when we called to give them the decision,” Moriwake says.

In the opinion, the Justices ding Commissioners for failing to consider how their decision not to restrict diversions from Iao and Waikapu streams would impact Maui taro farmers like John Duey and Hokuao Pellegrino, who have been unable to fully cultivate their loi because of insufficient water.

But the opinion–issued unanimously, with Justice Simeon Acoba elaborating further in a separate concurring decision–doesn’t plow new legal ground.

“It’s simply a reaffirmation of what our [state] Constitution has established and what the Court already made clear in the Waiahole case,” Moriwake says.

What the Court has repeatedly spelled out in its reversals of Commission decisions is that the appointed water board has the legal responsibility to restore and protect healthy stream flows for public trust purposes, and that it must give priority consideration to the needs of the natural environment and Native Hawaiian cultural practices.

However, the Court has not addressed the issue of whether companies that wish to divert streams also have a responsibility to exercise restraint in their demands on a public trust resource.

Though the Commission was created by the 1978 state Constitutional Convention, its work has been undermined over the years by poor funding and a politicized appointment process. Gov. Neil Abercrombie came under fire earlier this year for his nominations to the board. Environmentalists and Hawaiians first challenged his choice of Young Brothers’ President Glenn Hong, who withdrew, and then Maui real estate appraiser Ted Yamamura, who was confirmed by the state Legislature. Opponents contended neither man was qualified to serve.

The Na Wai Eha case began in June 2004, when Hui O Na Wai Eha and Maui Tomorrow petitioned the Commission to revise the interim instream flow standards that had been in place for the four waterways since 1988. The standards determine how much water can be diverted from the streams.

To comply with the high court’s decision, the Commission has already begun the process of trying to determine who has appurtenant (kuleana) rights to the Na Wai Eha water and how much water must remain in the streams in order to meet those needs.