Our water law was certainly in the news this week. The decade-old lawsuit pitting Native Hawaiians and environmentalists against corporate institutions that have been part of Maui since the nineteenth century is over.
Na Wai Eha means “the four waters” of Waikapu Stream, Iao Stream, Waihee River, and the Waiehu Stream. They are the main source of freshwater for central Maui. Long before any of us were around these waters flowed from the green mountains toward the ocean. The first people to divert some of its waters were the Native Hawaiian farmers. Their descendants used the streams to maintain their crops—early cases point out that these diversionary ditches had been around since time immemorial.
Then came sugar. After the American Civil War cut off America’s industrial cities from the Deep South’s sugar beets, the demand for Hawaiian sugar went through the roof. Sugar plantations and companies sprouted up throughout the islands, including the Wailuku Sugar Company.
Sugar’s a thirsty crop. Companies started diverting streams into irrigation ditches and reservoirs. By the 1890s, all four streams had been diverted and the Wailuku Sugar Company had control of the water.
Kalo famers took notice. Their crops dried up and wilted away while central Maui turned green with acres of cane. They sued the company. Sugar baron Claus Spreckles himself intervened (his eponymous ditch still runs water through the heart of Wailuku town).
The farmers argued that the diversion of the Iao Stream was unlawful. The Hawaii Supreme Court ruled in favor of the farmers, but limited their use of the stream at night. The rest of the time the stream could be used by the sugar companies. The farmers may have won their case, but eventually everyone seemed to have forgotten. The sugar companies took more and more water for their crops.
In the meantime, the Wailuku Sugar Company got into a bitter dispute with the Hawaiian Commercial and Sugar Company. HC&S wanted the water, but had the land. The Wailuku Sugar Company had the water, but less land. They didn’t bury the hatchet and resolve their dispute for more than twenty years, when the Wailuku Sugar Company agreed to sell the water to HC&S. The agreement held out for almost a century.
The agreement held for decades even after the Wailuku Sugar Company got out of the sugar business and started selling water. HC&S weren’t the only folks buying water. The company started selling water to the county and that brought about the rapid development of South Maui. These days, if you are flushing a toilet or washing your face in Kihei, you are most likely using water from Na Wai Eha. And that’s how it’s been for most of our lives.
Most of us cannot remember a healthy and flowing Waikapu Stream (take a look for yourself at the rocky and dusty streambed as it passes beneath Honoapiilani Highway next to Waiko Road).
But the farmers struck back. About ten years ago, the Wailuku Sugar Company’s company and HC&S requested their use permits with the water commission when a group of farmers objected. They argued that their traditional and customary rights as Native Hawaiian kalo farmers had been violated, among other things. That started a long controversy.
While the agreement between the Wailuku Sugar Company and HC&S stayed put, the law had changed dramatically. In the 1970s, the Hawaii Constitution was amended. Waters were no longer just any kind of property. It was held in the public trust for the benefit of all peoples. Native Hawaiians also had their traditional gathering and customary rights protected and recognized by constitutional provisions and a series of cases from the Hawaii Supreme Court. Given these revolutionary changes, the water commission was faced with new duties and tasks. The government now had a big say in the way old companies handled water.
And so the farmers’ objection turned into a twenty-three-day evidentiary hearing involving 77 witnesses and hundreds of exhibits. The water commission required the companies—now the aptly re-named the Wailuku Water Company and HC&S—to reduce amount of water it had been diverting from two streams, but not the other two.
The case went up on appeal and the Hawaii Supreme Court ruled for the farmers (again). It held that the commission did not adequately consider the now-constitutionally protected rights of Native Hawaiian farmers and their traditional and customary rights.
The court sent the case back to Maui and after more negotiating, the case settled as we learned this week. The terms of the settlement require the water company to restore water levels to the two remaining streams: Waikapu and Iao. Seems like the deal is going to go through. Kihei won’t lose all its water and maybe we can start to see water flowing underneath the highway in Waikapu.