A more than two decades-long court battle over water in Central Maui has come to an end with the state Supreme Court calling on the Water Commission to be more proactive in its public trust duties.
The justices found the state Water Commission failed to take the initiative to restore stream flow in Nā Wai ʻEhā when Hawaiʻi’s last sugar plantation closed in 2016.
Kaulana Nā Wai ʻEhā — "famous are the four great waters of Maui" consists of streamflows in Waiehu, Waiheʻe, Wailuku and Waikapū. Central Maui was once the largest continuous region of wetland kalo cultivation in the islands, and it is now the latest legal battleground for water rights, said Earthjustice attorney Isaac Moriwake.
“With the closure of the HC&S sugar plantation, the last sugar plantation on Maui and in Hawai’i, the Supreme Court said that this was a prime opportunity for the Water Commission to restore more flow to Nā Wai ʻEhā,” Moriwake said. “The Water Commission didn’t go far enough in terms of making sure that the stream flows and the communities were protected to the extent practicable.”
Moriwake has represented community groups Hui O Nā Wai ʻEhā and the Maui Tomorrow Foundation in this legal battle for the past 20 years.
“The Water Commission has gotten a lot more proactive and credit has to go to some real leaders on the Water Commission staff and even the commissioners as well taking serious their legal kuleana, their public trust kuleana to protect the water resources, to protect community rights to water,” Moriwake said.
“Now, we’re seeing the Water Commission for the first time in its decades-long history restoring stream flows to the West Maui streams in that Lahaina region," he said.
Moriwake said even in the Nā Wai ʻEhā case, the commission recognized the prioritized use of kuleana landowners and had the courage to deny water rights to commercial interests.
“This was the first time the Commission had the courage to do that. But it said you know in a time of water scarcity, golf courses aren’t going to get any kine water just cause they asked for it. So the commission stood up on that,” Moriwake said. “And in this latest landmark decision from the Hawaiʻi Supreme Court, the court upheld the commission for doing that.”
But the Water Commission still has its challenges, including a vacancy to be filled.
“Now, this is the Native Hawaiian practitioner's seat. The law, the Legislature specifically, created this opening to be filled by an expert Native Hawaiian practitioner who has that cultural knowledge, that pilina to the wai,” Moriwake explained.
“We are going to need that cultural grounding on the commission particularly with big decisions coming up for the agency.”
The shortlist for this seat on the Water Commission includes:
- Makahiapo Cashman, director of the Papa Loʻi ʻo Kānewai at the University of Hawaiʻi at Mānoa
- Lori Buchannan, chair of the Molokaʻi Planning Commission
- Hannah K. Springer, former Office of Hawaiian Affairs trustee from Kaʻūpūlehu
- Kimo Falconer, former Pioneer Mill agriculture director
The appointee, chosen by Gov. Josh Green, will be subject to confirmation by the Hawaiʻi State Senate.
