Last week’s storm-induced electrical outages and water line breaks recalled the line from Samuel Taylor Coleridge’s epic poem “The Rime of the Ancient Mariner”—“Water, water everywhere, nor any drop to drink.”
Both before and after the Kona winds blew and torrents of rain fell on Maui, a great confluence of discussion and debate has been taking place about the nature and legalities of our water resources.
In Wailuku, the State Commission on Water Resource Management began a contested case hearing on the distribution of the water from the four major streams—Na Wai Eha—of the West Maui Mountains. For more than a century, those waters have been controlled primarily by Wailuku Sugar Company, which changed its name to Wailuku Agribusiness a quarter century ago, and again recently to Wailuku Water Company.
A hui of groups, including EarthJustice and the Office of Hawaiian Affairs, is seeking to establish in-stream flow standards for stream wildlife, as has been required by the state Water Code since 1987. The Hui o Na Wai Eha and Maui Tomorrow, partners to the contested case, also join in seeking to preserve traditional and customary water uses, such as growing taro.
On Dec. 7, the Maui County Council passed the so-called “Show Me the Water” ordinance, three years after the bill was introduced. Council Water Resources Committee Chairperson Michelle Anderson spearheaded the bill, and brought the debate on the matter to the point that it passed unanimously.
For years, the county Department of Water Supply had issued permits with a caveat that water could not be guaranteed at the time a project was completed, though reservations for water meters were often issued well in advance. The new bill, once signed into law by Mayor Charmaine Tavares, will require developers to substantiate a reliable long-term water supply before receiving zoning or subdivision approvals, with some exceptions. Claims by developers that this would impose a de facto moratorium on development tend to underscore the seriousness of the water shortage issue.
The Maui Water Resource Forum, held Dec. 7 and 8 at Maui Community College’s Pa‘ina Building, included a wide variety of topics. Organized by the Maui Tomorrow Foundation and the Sustainable Living Institute on Maui, the “first annual” forum also attracted broad sponsorship from landowners, residents and developers.
Interactive electronic voting also provided a glimpse of the prevailing beliefs of attendees: 42 percent believed that implementing water conservation measures and sustainable resource practices should be a top priority; the most popular alternative for sustainable use was rainwater catchment, closely followed by wastewater re-use and reducing overall use; most felt rising costs of providing water could be traced to new residents, along with soaring oil prices (the Department of Water Supply’s pumping requirements for their 750 miles of pipe make them Maui Electric’s top consumer).
Retired Supreme Court Judge Robert Klein provided an insightful overview of the legal status of water in Hawai‘i, from the Great Mahele land division in 1848 to the present. By definition in the Hawai‘i State Constitution, water shall be held in a public trust and cannot be owned outright. “The State has an obligation to protect, control, and regulate the use of Hawaii’s water resources for the benefit of its people,” says Article XI, Section 7.
Attorney Alan Murakami, Litigation Director with the Native Hawaiian Legal Corporation (NHLC), further elucidated the complex web of water laws, rights and the shortcomings of our government in implementing constitutional mandates.
For instance, the adoption of county and state Water Use and Development Plans, which faced public review in meetings held on Maui this week, has been languishing for 17 years. Murakami says that without these overdue documents, “We have been missing a foundational basis of all our planning.”
Murakami said the water wars have shifted from Waiahole on Oahu, where legal tussles over former sugar allocations on the Ewa plain have persisted for 12 years, to Maui. In addition to the Na Wai Eha contested case, Murakami and NHLC have been involved with efforts to restore in-stream flows to East Maui streams in the Wailua area, continuing legal efforts that were begun a century ago. He said the state Commission for Water Resource Management’s record of stream protection “has been atrocious and needs serious reform.”
East Maui Irrigation (EMI), a subsidiary of Alexander & Baldwin, supplies from 160 to 450 million gallons per day of surface water for sugar cultivation and processing, with a small portion treated for the Upcountry domestic water supply. Murakami called this the most significant diversion in the state, with 75 percent of the water coming from state ceded lands and EMI paying less than one cent per thousand gallons of water.
Murakami said that when Circuit Court Judge Eden Elizabeth Hifo ordered partial relief to Wailuanui taro growers, it was the first time in Hawai‘i’s history that stream restoration had been awarded from an operating cane company. He said that the Kingdom of Hawai‘i filed a petition 130 years ago against the East Maui water diversion, and were told that native and traditional rights would not be injured.
Murakami also said that he objected in 2002 when Meredith Ching, A&B’s Vice President of Governmental Relations and Community Affairs, was appointed to the State Water Commission. William Tam, a Honolulu lawyer who wrote the state water code when he was the deputy attorney general assigned to the commission, called the appointment an “irreconcilable conflict” that puts authorities in “very difficult circumstances.”
“Will sugar be around in 10 to 20 years?” asked Jonathon Likeke Scheuer of the Office of Hawaiian Affairs. “I say, ‘no.’” He predicted that before then Na Wai Eha issues would be resolved, but doubted that we’d resolve problems relating to growth. He said that continuing development “brings us a high quality of life and destroys our [traditional] quality of life at the same time.”
County water re-use expert Steve Parabicoli reminded the audience that we’re recycling just 22 percent of county wastewater treated to R-1 standards (which we can use for small and large-scale irrigation). The remainder is being pumped into the ground through injection wells at treatment facilities in Kahului, Kihei and West Maui. While studies indicate that near-shore algal blooms happen in proximity to each of these areas, other factors also contribute.
Limitations in re-use have much to do with the cost of transmission lines for R-1 water. Parabicoli is a strong advocate of aggressive water conservation measures, and said he’s greatly encouraged by the recent hiring of a conservation officer or “water marshal” position in the Department of Water Supply. In California, similar positions allow enforcement of overuse violations like irrigation overspray, wasteful practices such as home car washing with the hose running and failure to comply with storm runoff best-management practices.
Properly managed watersheds need not result in massive runoff to the ocean, according to the conference speakers who serve as resource managers. Scott Fisher of Maui Coastal Land Trust, Chris Brosius of the West Maui Mountain Watershed Partnership and Alison Cohen of the Nature Conservancy all described the importance of a healthy upslope watershed as a basic management strategy in our water equation. A student panel further emphasized the point, relating that replanting and reforestation efforts are vital.
“Once you volunteer, you’re hooked,” one high school student said after helping with replanting efforts with the Leeward Haleakala Watershed Restoration Partnership. “It’s important to put in to the system, not just continually take out.”
Such common sense declarations were prevalent over the two days of the Water Forum. Perhaps the most accessible of solutions offered were those explicated by ‘Iao Valley resident John Duey, long time owner of Duey Irrigation and President of Hui O Na Wai Eha.
“Something has to be done about our water,” he said. “We can’t go on the way we’ve been doing.” His five-point plan included:
• Conservation, which goes hand-in-hand with watershed protection.
• Recycling. “Why pump usable R-1 water into the ground?”
• Recharge. Studies show that stream restoration will replenish our over-pumped aquifers.
• Condemnation of Wailuku Ag/Wailuku Water Company. These lands and water transmission systems should be held publicly, not privately.
• Storage. We should increase county capacity to one billion gallons.
“The Water Forum proved two things to me,” Lucienne de Naie, a Huelo farmer, community activist, panelist and Water Forum organizer, said at the forum’s close. “One, that there is considerable interest by many people in our community to see a shift in how we can more fairly share the use of our water resources for the future. And secondly, that this will only happen if we can move from confrontation to collaborative thinking before we are forced to do so by forces beyond our control.” MTW