Ka Wai Ola - Office of Hawaiian Affairs, Volume 31, Number 3, 1 Malaki 2014 — Fate of Nā Wai ʻEhā still unknown [ARTICLE+ILLUSTRATION]

Fate of Nā Wai ʻEhā still unknown

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M i^H ■ ■ !■ M H H I

WATER RIGHTS

Continued from page 19 "This case is going into its 10th year," said Pamela Bunn, an attorney with the Honolulu-based law firm Alston Hunt Floyd & Ing, whieh has represented OHA in the Nā Wai 'Ehā case. "But there are signs that we are getting closer to a resolution." In recently updating the OHA Board of Trustees on the case, Bunn said that the organization's legal position has not changed. For example, OHA continues to argue that there is enough water in the Nā Wai 'Ehā streams to irrigate the Hawaiian Commercial & Sugar Co.'s fields and support such puhlie trust uses as growing traditional root crops as well as exercising gathering, spiritual and other traditional and customary practices. 'Enough water to go around' "Our position was not that the Hawaiian Commercial & Sugar Co.

had to shut down or that all water had to be retumed to the stream," Bunn said. "OHA's position was there's enough water to go around, and the evidence at the original contested case hearing proved that to be the case." Bunn also laid out for the trustees the organization's original three

goals for Nā Wai 'Ehā. Chief among them is to re-establish year-round flows in the Nā Wai 'Ehā streams, from the summit of Pu'u Kukui and Mauna Kahalawai until they reach the Pacific Oeean, she said. The other goal is to return puhlie trust resources to puhlie control and

management. The third is to secure permanent stewardship and funding for the watersheds so there will be streams for the future. "Our goals haven't changed over the past 10 years," Bunn said. Rick Volner, general manager of the Hawaiian Commercial & Sugar Co., has been less than enthusiastic about the Hawai'i Supreme Court's decision vacating the water commission's ruling, declaring in a previous statement that the water commission's 2010 decision provided his company with a "fighting ehanee for survival so it ean continue to make its critical contributions to Maui's economy, preserve jobs and keep Central Maui green, both visually and through the generation of renewable energy." Still the impression lingers among many that his company diverts significantly more water than it needs, impairing the ability of Native Hawaiians to exercise traditional and customary practices such as growing kalo and gathering from the streams and nearshore waters. "There are a number of problems with the diversions," Bunn said, pointing out that the diversions dry up coastal springs and wetlands, interrupt the life cycles of native stream species, and reduce the recharge to the aquifers that are Central Maui's main water supply. One of the issues that made a particular impact on the Hawai'i Supreme Court was the amount of water diverted from Nā Wai 'Ehā that goes to waste. The court characterized Hawaiian Commercial & Sugar Co.'s losses as "massive"

and pointed out that those losses, estimated at 13 million to 16 million gallons per day, amounted to more than the total amount of water restored to the streams by the water commission's 2010 decision. Maximizing sugar yields That viewpoint seems to unsettle Volner. "I believe HC&S has been very proactive when it comes to looking at ways to conserve water, to minimize anything that could be construed as waste or losses," Volner said. "We have a very robust maintenance program to maintain the lining of ditches to minimize seepage. We don't consider any losses fromthe systemas waste; we see that as just return to the natural cycle whether it's through rainfall or seepage." Among his doubters is Jocelyn Doane, senior puhlie policy advocate at OHA. "You can't waste millions of gallons of water a day and then say it is OK because indirectly it may be benefiting the aquifer through recharge," Doane said. "Hawaiian Commercial & Sugar Co.'s system travels across muhiple places and so it is taking water from one plaee and running it along muhiple ahupua'a and possibly recharging it there. So it is not recharging the plaee where it is coming from. Furthermore, there are many people who could be using that water instead of it being wasted through an ill-managed system." In a video OHA produced on the issue, Volner remains unreconciled 1 1 WATER RIGHTS ON PAGE 21

www.oha.org/kwo | kwo@OHA.org NATIVE HAWAIIAN » NEWS | FEATURES | EVENTS

I* _ ^ I I I n \illl m/^P^ anaverageof OnMaui, one ® ' w \ companyis O . i,— \ able to divert - .„. „ V as much • © \ ^ 1 wastes ana'dditional *80% of the populotion million gallons lives on O'ohu. of water daily.*^i Sou!ce: Native Hawaiian Letjal Corj). ^ of water daily.

Breakdown of 2009 decision on amount of water returned to Nā Wai 'Ehā Streams The decision prompted an appeal to the Hawaii Supreme Court PR0P0SED DECISI0N HC&S PR0P0SAL FINAL DECISI0N (1/9/09) (10/15/09) (6/10/10) Waihe'e River 14 mgd 5 mgd 10 mgd Waiehu Stream 3.5 mgd 3.5 mgd 2.5 mgd 'īao Stream 13 mgd 4 mgd 0 Waikapū Stream 4 mgd 4 mgd 0 TOTAL 34.5 mgd 16.5 mgd 12.5 mgd "mgd" represents million gallons per day (īhe lnterim lnstream Flow Standards (IIFS) for Waikapū Stream would be conditional upon flow reaching Kealia Pond within 120 days)

WATER RIGHTS

Continued from page 20 to that viewpoint, saying that his company has been farming 36,000 acres on Maui for a while. "We know pretty well what our requirements are and where we ean get water to optimally grow and to

maximize the yields that we have," Volner said. "Water is actually the single most important determinant to deciding what kind of yield you ean have on sugar eane." Area streams, onee abundant, supported Hawai'i's largest taro cultivation site At the center of the issue that has polarize the community is an aging ditch system built by sugar plantations more than 100 years ago. It continues to drain the Waiehu, 'īao and Waikapū streams as well as the Waihe'e River, pitting sugar plantations against farmers who want to grow crops that have sustained eommunities for generations. Since 2004, taro farmers and eommunity groups have mobilized to restore water to the area that was onee identified as the largest continuous area of taro cultivation in Hawai'i. Kapua Sproat took up their cause as a lawyer for EarthJustice by initiating the Nā Wai 'Ehā case, calling for relief to communities burdened by the fact that the vast majority of water resources were being controlled by what she characterized as "plantation interests or their subsidiaries." She ean recall the water fights on Maui reaching a critical point in April

2009, when a hearing officer ordered about half the water that was diverted return to all four of the Nā Wai 'Ehā streams and communities. "What we then saw was a huge backlash by the Hawaiian Commercial & Sugar Co. and their supporters," Sproat said. "They immediately played their eeonomie trump card and basically threatened

the commission with an ultimatum and told them that if the commission finalized that draft decision that would be the end result and that over 800 people would be laid off. And so the water commission bowed to political pressure and when the hnal decision was issued in June 2010, they only restored 12.5 million gallons to two of Nā Wai 'Ehā's four streams." In explaining the current situation, Doane added that "what ends up happening is both 'īao and Waikapū end up getting no water. So, folks that live helow the diversions, who live on their family lands get nothing essentially, while the streams continue to be drained dry." Allan Ornellas, who grew up swimming, fishing and playing in 'īao Stream, is hoping all that will change at the March 10 hearing on Maui. "We used to be able to go down there and swim with a rubber tube," Ornellas said. "Now, you can't even blow a soap bubble in it because the amount of water in the stream in down to a trickle. We must convince the water eommission to do the right thing." ■ For more on this story, visit kamakakoi.com.

C Allan Ornellas 3 points oul the 1 loealion of some 9 aneienl lo'i on 9 his ohana's C kuleana land | in Wailuku. ? 4: A