Commission sets precedent for solving East Maui water woes

On Wednesday, discussions over the distribution of East Maui's water came to a boiling point, culminating in a recommendation by the State Commission on Water Resource Management to restore 12.21 million gallons of water per day back into the island's streams.

The commission's decision on flow standards for eight streams attempts to resolve a water struggle involving a commercial sugar plantation, farmers in Kula, and taro farmers who argue that state law guarantees them water rights.

At the head of the struggle is East Maui Irrigation, a subsidiary of Big Five corporation Alexander & Baldwin. With a hand on the valve that affects how water is distributed downstream, A&B diverts on average 160 million gallons per day from East Maui streams to irrigate sugarcane fields owned by Hawaiian Commercial and Sugar Company, another A&B subsidiary, in central Maui.

"The Water Commission is for the people and for the farms, it's not a one-sided situation," says David Nobriga, proprietor of Nobriga Ranch, who acknowledges the commission's difficult decision in pleasing all parties involved. "Not everyone is going to get what they want."

Nobriga is among a number of farmers who purchase diverted water from Maui County, who in turn purchased the water from A&B's East Maui Irrigation.

He says while there have been court decisions in the past that establish industry standards for the island's water diversion, the Water Commission was never properly funded to get those standards made.

"A law was conducted, the ConCon made rules, but we're still waiting for things to happen," Nobriga says. "It's like putting the cart before the horse."

He says the Water Commission should be funded to conduct proper studies on all streams involved in East Maui and protect streams that have not been already diverted.

Sean Loa, an account representative for American Machinery, which also purchases diverted water from A&B through the county, says that he and other businesses have a vested interest in the Commission's decision.

"We have our own interests and the interests of our customers," Loa says. "We've got customers everywhere, all up in Kula."

The commission's decision to restore over 12 million gallons of water per day back to East Maui's streams comes five months after a heated fact-gathering meeting in April. Dozens of community members, including members from Na Moku Aupuni O Ko'olau Hui, testified over four hours about how the stream diversion had gone unnoticed and under-publicized for too long.

According to the state Constitution, any diverter of water has the legal burden of demonstrating that any diversion of water is not harming the water rights held by downstream taro farmers. The Hawai'i Supreme Court upheld these water rights in four recent court decisions. The First Circuit Court has also ruled that any diversions of water cannot injure others with customary Native Hawaiian rights to the same water, as guaranteed in state law.

In response to the Water Commission's decision, which established minimum in-stream flow standards, A&B is calling for the commission to provide rulings for all 27 streams from which it diverts.

Stephen Holaday, president of A&B's agricultural division said in a statement, "Pending a decision on all 27 petitioned streams, HC&S is in a regulatory state of suspension, making it very difficult and very risky to plan for its future."

A&B owns 89,120 acres in Hawai'i, and has plans to develop residential projects in Kahului, Upcountry, and Wailea on Maui; in Kukui'ula and Port Allen on Kauai, in Kakaako and Waiawa on O'ahu; and in Kohala, on Hawai'i Island.

Lawmakers are also looking to ensure that the Water Commission follows through on its ruling. House Resolution 301, currently in legislation, states that the Board of Land and Natural Resources has failed to act to fully and timely protect the water rights of East Maui residents since 2001. The resolution also calls for the immediate release of all water being diverted from East Maui streams that prevents taro farmers from cultivating their crops and requests that the Water Commission evaluate its budget to more effectively address complaints.

With over 60 trillion gallons of water diverted from East Maui streams each year, the Water Commission's ruling has set a crucial tone that will have business owners, commercial farmers, and Native Hawaiian taro farmers watching closely to see what standards are set for the island's other streams and if the commission will be equipped to enforce them.