After 12 hours of deliberation and public testimony at the monthly meeting of the state Commission on Water Resource Management (CWRM), it was clear that regaining the public's trust could be an uphill battle for Commission Chair Dawn Chang and Gov. Josh Green.
More than 300 pages of testimony were submitted to the commission, nearly all of it urging to restore the State Water Code, reinstate in-stream flow standards, advance the water management area designation for Lāhainā, and reinstate former CWRM Deputy Kaleo Manuel.
Chang reassured attendees that the State Water Code had been fully restored on Sept. 9, and that in-stream flow standards are back in place. Water permit applications are also being processed by CWRM staff for the Lāhainā Water Management Area.
However, she did not provide any further explanation or clarity on her decision to redeploy Manuel.
Transparency in redeployment
At Tuesday’s meeting, Chang disclosed that Manuel had been reassigned to the Department of Land and Natural Resources’ State Historic Preservation Division. Despite repeated testimony calling for an explanation, Chang would only say that the deployment remains a "personnel matter" and that the decision was ultimately made to prevent “a cloud” from hanging over the Water Commission and its work.
“My determination to redeploy Kaleo was not a unilateral decision. That was a request I had received from the attorney general’s office based upon an investigation,” Chang said.
Water Commissioner Neil Hannahs raised his concerns that in the absence of information, people get cynical and things get made up.
“If we lose the trust, our work is going to get really, really difficult, and the progress we make is going to be really, really challenging," Hannahs said. "The divisions it creates and the animosity it creates is going to be really, really bad. And the threat to the resource that we are sworn to protect is going to be jeopardized.”
Despite overwhelming testimony in support of reinstating Manuel, University of Hawaiʻi law professor Kapua Sproat said the water rights advocates haven’t always agreed with Manuel’s decisions.
“But he's fair and he's transparent,” Sproat said. “And I worry about what's going to happen to the community and the lāhui when they feel like they've been shut out from the process.”
Moaliʻi taro farmer Kekai Keahi, who flew into Honolulu from Lāhainā for Tuesday’s meeting, said commissioners need to refocus on protecting the public trust.
“When you guys start to protect the public trust then you can regain the public’s trust,” Keahi said.
Water in Hawaiʻi held in public trust
Water in Hawaiʻi is a public trust resource, protected under the state Constitution and State Water Code. But for at least 150 years, water was managed as a private commodity mostly by plantations disrupting the natural flow of streams from the mountains to the sea.
As plantation agriculture phased out, communities across Hawaiʻi battled for stream restoration. Taro farmers in Waiāhole fought for 15 years to restore stream flow to their valley. The battle for stream restoration in East Maui dragged on for 17 years. The longest fight to date has been on Maui with mauka to makai stream flow restored to Nā Wai ʻEhā after 20 years.
In every case, the Water Commission is responsible for setting what is known as in-stream flow standards, or IFS, for each stream. This is the amount of water that needs to be in the stream to ensure water resources are protected for public trust purposes. These include stream life, water quality, Native Hawaiian rights, taro cultivation and more.
Did in-stream flow standards impact the ability to fight fires?
The Water Commission’s job is to ensure enough water is in the stream to meet public trust purposes, while also considering competing off-stream uses such as the diversions for agriculture or development.
In the wake of the West Maui wildfires, Gov. Josh Green was quick to cast blame for the fires on stream water users. He did not explicitly name them, but those users are Native Hawaiian communities and taro farmers fighting to keep water in their streams.
“One thing that people need to understand especially from far away is there has been a great deal of water conflict for many years. It's important that we are honest about this. People have been fighting against the release of water to fight fires. I’ll leave that to you to explore,” Green said.
Green’s rhetoric sparked outrage from some within the state’s Native Hawaiian community, including Honokohau Valley taro farmer Keith Keahi. He flew in from Maui early Tuesday morning to ensure his voice would be heard.
"I feel a little bit weathered, a little bit beat, and now this is not helping of course," Keahi said. "And all of a sudden, some days after the fire, to hear this narrative coming out to paint this picture of Kaleo and kalo farmers like me as public enemy number one, all of a sudden. So now I get one target on my back like I one criminal. And that when hurt."
"All of a sudden oh, blame the Hawaiian like we the problem. We never do nothing. What’s wrong with just being one Hawaiian? I like grow my kalo. Why I gotta be the criminal?"
Chang clarified that blaming kalo farmers was never her intent.
"It’s never been the intention or directive here at CWRM to in any way blame the kalo farmers for the fire. That came out as a Civil Beat article in light of the correspondence that was going on," Chang said. "But that has never been a narrative that we at CWRM have ever supported."
Water Commissioner Hannahs asked CWRM staff for clarity on Green’s statement at Tuesday’s meeting.
“Did the existence of in-stream flow standards, in your view, have any relationship on our ability to fight those fires?” Hannahs questioned.
“None,” CWRM hydrologist Ayron Straunch said.
In-stream flow standards suspended
The IFS for West Maui streams from Ukumehame to Kahoma were suspended for one month in response to the Lāhainā wildfires. The third emergency proclamation signed on Aug. 9 suspended the State Water Code governing in-stream flow standards.
CWRM staff said in the statement to HPR that the suspension of the State Water Code is typically done after natural disasters to ensure response efforts aren’t slowed by government regulation.
Water Commissioner Larry Miike criticized the IFS suspension for not protecting the public trust.
“Rather than suspending the IFS, [off-stream use] should have been seen as a competing use,” Miike said. “And if any water is going to be used for emergency fire or for putting water in the reservoir for fire, it should have come out of the other users.”
Miike said these competing uses need to be deliberated by the commission.
“And if there’s not enough water for all the people, which seems to me that’s what's happening already, then we deal with that in that process,” Miike said. “Not by just saying 'Oh, we suspend the stream flows and take it out of the streams.' That’s the wrong way to do it.”
West Maui Land Company under investigation
While the suspension of in-stream flow standards in West Maui was rescinded on Sept. 9, some Lāhainā residents who flew to Honolulu for the commission meeting said compliance and enforcement are lacking — and streams are still dry.
Chang said she sent a letter to West Maui Land Company executive Glenn Tremble underscoring the restoration of IFS in West Maui. Chang said the commission staff are also investigating a complaint against the private water purveyor for non-compliance.
The commission said the ongoing battle for water resources in Lāhainā is being exacerbated by declining rainfall, saltwater intrusion, potential drought and climate uncertainty. These conditions led CWRM to designate Lāhainā a Water Management Area in June 2023.
This designation prohibits the use of water in the region without first obtaining a water permit from CWRM.
To help meet the increasing demand for water in West Maui, the Water Commission is also looking into two alternative water sources. This includes improvements to the Lāhainā Wastewater Reclamation Facility as well as the repurposing of an old Honokohau water tunnel.
“Full speed ahead”
More than 100 permit requests to use water from the Lāhainā Aquifer were submitted to CWRM.
Media statements by Green a week after the fire alluded to a possible suspension of the designation to fast-track development in West Maui. Chang put to rest any lingering fear in Lāhainā that the designation would be withdrawn in the wake of the Maui wildfires.
“We are in no way going to withdraw [the designation]. We recognize that we need to be more mindful and thoughtful to this community. Everybody on Maui is sort of in a state of limbo, so we don’t want to push anything but rather work with the community when they’re ready,” Chang said.
“But I just want to reassure everyone here that staff is working to move forward with the designation process. Nobody has told us not to do it, so we are continuing full speed ahead.”
About 80% of the water permit applications received by the commission are for existing uses, with only 22 applications requesting new uses. Most of the new use requests are from the six private water companies that control 75% of the water used in West Maui. A majority of the existing users are kalo farmers and Native Hawaiian traditional practitioners.
There was no definitive timeline for the application process, but Water Commission Deputy Dean Ueno said a public hearing is required before any applications can be approved. Any objections raised during the hearing could prompt a contested case hearing.
Historical moment for the Water Commission
The Water Commission has reached a critical juncture in its 35-year history, said Earthjustice attorney Isaac Moriwake. He has spent decades appearing before the commission.
“We’re making history right now. One way or another, we’re making history,” Moriwake said. “This will be, speaking from experience, a historically defining moment for this commission. Where-were-you-when kind of history. Which-side-of-history-were-you-on kind of history.”
Some in attendance at the commission meeting Tuesday — like Waikapū taro farmer and kuleana landowner Hōkūao Pellegrino — are calling for a public apology from Green for the false accusation.
“Gov. Green, you have failed us. To assume that a kalo farmer ever had that much power over their water. Give me a break,” Pellegrino said. “Gov. Green’s statements should be retracted and a public apology should be made not only to the people of Hawaiʻi, but most importantly to these people behind me.”
The Water Commission expects a huge turnout at its next meeting to be held on Maui in October.
Chang said she understands that a decision needs to be made about reinstating Manuel before the commission meets, but she said she doesn’t know what that decision is going to be.
