It’s Time For Balance In Nā Wai `Ehā
October 12th, 2009 by Trisha Kehaulani WatsonThe State Commission on Water Resource Management (Water Commission) is close to deciding how much water must be restored to Nā Wai `Ehā, or “The Four Waters,” of Central Maui. Waihe`e River and Waiehu, `Īao, and Waikapū Streams have been drained dry for over a century by two private companies, Wailuku Water Company (WWC), formerly Wailuku Sugar Company and Wailuku Agribusiness, and Hawaiian Commercial & Sugar (HC&S), a subsidiary of Alexander & Baldwin (A&B).
In 2004, Maui community groups Hui o Nā Wai `Ehā and Maui Tomorrow Foundation, with the support of the Office of Hawaiian Affairs, started making the case to the Water Commission through the testimony of fifty community members and experts and hundreds of exhibits, that the companies’ practice of taking all the stream flow seriously harms protected instream uses, including:
* mauka-to-makai flow to support the lifecycles of native stream life like `o`opu, `ōpae, and hīhīwai
* influx of freshwater into the ocean to support nearshore resources like limu
* maintenance of coastal wetland ecosystems
* kalo farming, which requires cool, clean, flowing water
* traditional and customary Native Hawaiian rights, including kalo cultivation, religious activities, and gathering of native stream life
* recreational activities
* scientific study
* aesthetic enjoyment
The law is on the community groups’ side. Under the Hawai`i Constitution and State Water Code, fresh water is a public trust resource that belongs to all the people – individuals can use some of it for reasonable and beneficial purposes, but no one can own the water or take all of it for their own exclusive use. My grandfather, former Chairman of the Board of Water Supply and engineer with DLNR, strongly believed in water as a public trust resource. He spent his life and talent ensuring water was available to everyone. I believe he would support the community’s position on this issue.
The Water Commission, as designated trustee of our fresh water resources, has the profound responsibility to balance the public’s right to beneficial instream uses, like the ones Nā Wai `Ehā’s community seeks to restore, with private offstream uses, like the ones WWC and HC&S hope to continue.
In April 2009, Hearings Officer Lawrence Miike, M.D., J.D., after conducting a lengthy administrative trial, issued a proposed order recommending the restoration of 34.5 million gallons a day (mgd) to the streams. By providing enough water to achieve substantial mauka-to-makai flow, Dr. Miike has taken the first step toward balancing beneficial instream uses with reasonable offstream demand. The full Commission will soon have a chance to follow suit when they vote on whether to accept, reject, or modify the recommendation.
But even though WWC and HC&S get to keep more than half of what they currently divert under Dr. Miike’s recommendation, the companies are still arguing it’s not enough for them.
WWC sold off its farmlands years ago, so why does it want to continue taking as much water as it always has? In short, WWC currently uses Nā Wai `Ehā water to profit off the public’s resource. In 2005, WWC told its shareholders that it had an extra 27.5 mgd to sell to new customers, and it has started cutting deals to do just that.
Luckily for us, the Water Commission, not WWC, gets to decide whether or not this is an appropriate use of the water. And so far, the Commission is not buying what WWC is selling. In his proposed decision, Dr. Miike found that WWC proved only 2 mgd of its uses are reasonable and beneficial.
As for HC&S, it says it needs every last drop of Nā Wai `Ehā water to keep its plantation going, but the truth is HC&S doesn’t need all the stream water it currently uses. The former Wailuku Sugar plantation historically used most of the water diverted from Nā Wai `Ehā, and HC&S used only about one-third. For over 60 years, HC&S satisfied much of its water needs – more than 20 mgd – with nonpotable agricultural wells.
HC&S could easily continue using those wells if it truly wanted to keep its lands in sugarcane. It could also tap up to 5 mgd of recycled water from the Wailuku-Kahului wastewater treatment plant, and save up to 12 mgd by repairing and lining its leaky reservoirs and ditch system. HC&S doesn’t need all the water from the streams; it simply wants to continue to use “free” Nā Wai `Ehā water instead of paying for alternative sources or conservation measures. I don’t believe this is in the greater public’s best interest.
Rather, restoring Nā Wai `Ehā streams will support the public interest and Maui agriculture by allowing family farmers from Waikapū to Waihe`e to open their kalo patches and gardens to grow food for their families, friends, and neighbors. Nā Wai `Ehā was once Maui’s breadbasket with the largest continuous area of kalo lands in all of Hawai`i, and community members have testified they will restore much of these lands to kalo once the water is returned to allow them to support their families, live their culture, and keep Maui green.
Neither will restoring Nā Wai `Ehā streams harm Maui County’s ability to provide clean drinking water to the community. In fact, keeping the water in its own watershed by restoring the streams will help recharge `Īao Aquifer, Maui’s largest public drinking water source. A U.S. Geological Survey study estimates that the companies’ diversions deprive the aquifer of 12 mgd of recharge. That’s equivalent to more than 60% of the aquifer’s yield, enough drinking water for future generations. As it stands today, the water HC&S uses is taken out of the watershed and applied to fields over a brackish aquifer, the same aquifer HC&S refuses to use because it would rather use “free” Nā Wai `Ehā water than spend the money to pump its own wells.
Thursday, October 15, 2009, the full Commission will hear closing arguments on Dr. Miike’s proposed restoration of Nā Wai `Ehā flows before making its final decision. The time has come for WWC and HC&S to share this public trust resource with the people – Hawai`i law and the health of the watersheds require it.
Countless studies have shown that the well-being of our environment, including both our terrestrial and coastal areas, are largely dependant upon healthy watersheds. While we must remain sensitive to the needs of local businesses, we cannot allow those sensitivities to come at the expense of a sustainable environment. We, and our children, simply cannot afford it.
Dr. Miike’s decision is both sound and sustainable. I am hopeful that the Commission and public will support it.
Tags: na wai eha, water commission
October 13th, 2009 at 2:35 am
Thanks Kehaulani for this topic. I agree that the water needs to be returned to the rivers that have been dried out for a long time. We all know that the mighty $$$ and corruption helped dictate this issue for a long time. The insistance of the people for the water's to flow again has been long and hard fought. It really shouldn't have been-cuz there is a federal law (have been on the books for a long time) stating that no rivers/streams can be made dried due to the complete divertion of the water. But, as we all know the state picks and chooses the "federal laws" that it wants to abide by-whichever is convenient for them.
Gads, these politicians have got to go. The corruption has gone amuck for so long that it is going to be a long hard trip to make it right. I have no confidence in the Commission either. I will be watching this issue with great doubt that the "outcome" will be fair and just.
The wonderful dream to have our people (who own this major resource) once again produce kalo and food to sustain us. The greedy companies are our obstacles may one day rely on the food that will be grown there-howz that for a ironic twist? Whateva's- the people of Maui will become whole again without having to rely on "imports" to survive. Hey, maybe becuz they are island people and understand the real meaning of Aloha you think they'd share with the Oahu guys cuz you see, all our AG land now just grows people.
October 13th, 2009 at 5:34 am
Attorney Patrick Hanifin, a mutual friend of Trisha and me, taught environmental law at the UH law school and was a litigator on environmental issues in private practice. He was strongly opposed to the "public trust doctrine" for water.
Patrick's fiancee was a woman from Nigeria who was a member of the Ibo tribe (they met while they were both in graduate school at Harvard). Because of her, Patrick took great interest in the role of private property ownership as a pathway to economic advancement for people living in poverty in underdeveloped nations. Patrick told me many times that private ownership of water gave the owners a strong incentive to protect the water supply and to make water available to the general public at prices they could afford; whereas government ownership of water usually led to bribery, corruption, pollution, and lack of access for poor people.
Here's something I found just now on the internet. There's plenty of material out there to support Patrick's viewpoint; this is only one example of thousands.
Kendra Okonski wrote in The New Atlantis recently about the practical effect of this notion, that no one can profit from providing clean, piped water.
The sad cases offered by activists is that of poor Third Worlders thirsting because of corporate denial. Except, writes Okonski, in real Third World countries, it’s the governments’ usual mismanagement of water systems that means millions of slum dwellers thirsting. Where the notion of owning water sprang up, it was because entrepreneurs, often from the slums themselves, went out to buy tanks, fetched decent water and sold it at prices their neighbors could afford. It certainly beats having nothing:
“The transactions between these informal entrepreneurs and consumers are generally completely voluntary: entrepreneurs supply water and sewerage, and consumers willingly pay for it, because it is more reliable, and often less costly, than similar services provided by government. These private services make it possible for their customers to pursue other uses of their own time and resources, and to live better lives.
“These entrepreneurs and their customers are some of the world’s poorest people. Nevertheless, they have created a thriving market to address water problems that their governments have failed to solve.”
Sure, there are problems with such informal markets. But, writes Okonski:
“Given that these markets were formed precisely because of government incompetence and corruption, it seems highly unlikely that governments would replace these markets with a better system. In fact, many governments have already declared the operations of the water entrepreneurs illegal. That’s why they operate in the informal sector—the black market for clean water. Abolishing water-selling profit may benefit these countries’ governments, but for citizens it could mean an immediate reduction of access to water and sewerage.”
The details differ in richer countries, but the principle scales up, she notes. People buy bottled water not because they were fooled into it but because, for particular places, its more convenient or of better quality than water from unresponsive public systems. Activists talk of water-table troubles, though their facts are, at best, debatable. What they don’t talk about is why they think you should put up with drinking crappy water just because it’s what some local government provides.
The passion isn’t really about water, writes Okonski. It’s more about capitalism and property. Of the big water activist groups, she writes:
“Water is but one of their pretexts for inveighing against the growth and integration of national economies. Their attacks are broad and radical. International trade and market institutions, such as property rights, are their common targets. (The anti-privatization documentary) ‘Thirst,’ for example, speaks favorably about the forced taking of private property through eminent domain, evincing a general disdain for anything ‘private.’ ”
Doesn’t work, she writes. Recall, it took a government – the people’s own socialism of the Soviet Union – to dry up the Aral Sea. More of that model isn’t the answer:
“Attacking corporations and lamenting globalization will not alleviate the water crisis. Nor will pretending that water is a human right. We require another paradigm of right—the right to property, and the institutions and practices that enforce that right—to put self-interested individual creativity in the service of managing, delivering, and preserving our world’s precious water.”
October 13th, 2009 at 12:06 pm
Mahalo for shining much needed light on this topic! The story of water in Hawai'i tracks the story of dispossession of the Hawaiian people by the plantation oligarchs. But, the law now recognizes the ancient Hawaiians' "original intent" that water is not the plantatons' property, but the common heritage of all and a defining element of Hawaiian identity and culture. As far as the comment that we need private control of this public resources, one need look no further than the plantation legacy of poisoned aquifers and dewatered streams to see what a mess that got us into!
October 13th, 2009 at 12:51 pm
Then again private water suppliers killed hundreds in New York and London as they drew water from polluted wells or the Thames. Government had the money to set aside the Adirondacks and construct aqueducts into New York. Then there was Rome. . ..
Sometimes government is good; sometimes bad. It is a bit more complicated than Ken wants to paint, probably just because he wants to be on the other side from Trisha.
October 13th, 2009 at 6:52 pm
Ulu said "Sometimes government is good; sometimes bad. It is a bit more complicated than Ken wants to paint, probably just because he wants to be on the other side from Trisha."
No, that's not it. I've noticed that just about all Hawaiian sovereignty activists are also socialists, whereas I am a capitalist. They believe in communal ownership of land, and that group rights are superior to individual rights; whereas I believe that individual ownership and individual rights are most important. The apology resolution, for example, incorrectly says that native Hawaiians before Captain Cook's arrival had "communal land tenure" whereas, in fact, it was a feudal system where individuals had zero rights other than whatever the konohiki told them they could do.
October 14th, 2009 at 2:26 am
Capitolist Ken? Does that mean you can be bought? For a price you would do any thing? Ok, I can see that strategy coming from you.
Socialists? Does that mean becuz we Hawaiians aloha i ke kahi i ke kahi? Ok we will claim that title of socialist. It sure beats having to covert other peoples resources/possessions. Or having to invade other countries to prove how superior we are. No, we would rather live in peace-too bad you capitalists refuse to live in that style too.
Water, the Hawaiians knew very well that it was needed by everyone. It did not belong to anyone but to all. The law was that anyone caught poisoning the water source would be put to death. And rightfully so. But, make no mistake the water source (from the mountain to the sea) was guarded-in case any idiot had the idea to contaminate and do harm.
We are of a people that care/honor sacred things. But, being a capitalist-I guess everything has a monetary value. Is that why you hate KS? Theyve got too much more that you? Can you barely stand that? Don't you wish you could "overthrow" that?
By the way, if I could only believe what you've been propagating about the Akaka bill is true-I'd be for it. You know full well that the US will not liberate the Hawaiians in one bogus bill. Just like in the Charley Brown video-Lucy keeps moving the ball. One day Charley Brown should just go ahead and kick Lucy-would serve her right.
October 14th, 2009 at 10:09 am
I think the one thing that's being missed is a little think called 'drought' as well as the fact that like we have everywhere we have over built. But yes folks out in Hana, etc. have kaloe (?) to grow for poi and they have as much right to the water as the big resorts.
October 14th, 2009 at 10:44 am
Ms Watson has presented truth to power, and should be commended.
I suppose Mr conklin sincerely believes that using pesticides that contaminate the ground waters of 4 or 5 Maui aquifers as "good stewardship" by private corporations who currently control our water resources. Is his point that pollution is good for business because it creates more "economic opportunities" to clean it up? Oh no, wait, free market types usually believe that any claims of pesticides creating contaminated water that makes people sick are just left wing propaganda made up by irresponsible environmentalists.
County Government, on the other hand, supplies water to Maui citizens at one half to one third the rate of Maui's 4 private water companies. What a socialist conspiracy.!!
The main question: is there a corporation that creates the rain that falls to become our water supply? If not, perhaps the Bible is right and the rain falls on the just and the unjust alike and should be shared for the benefit of all, not the profit of a few.