By EDWIN TANJI, For The Maui News
POSTED: August 28, 2009
There may be plenty of water on Maui.
There is not enough cheap water – not when an extended period of abnormal rainfall places much of the island in drought and not when Hawaii law and court decisions require reallocation of access to the cheap water.
That’s not how state water commission hearings officer Dr. Lawrence Miike put it in his proposed findings and recommendations on setting stream flow standards for Na Wai Eha, the four major streams at Waihee, Waiehu, Wailuku and Waikapu (hawaii.gov/dlnr/cwrm/currentissues/cchma0601/CCHMA0601-01.pdf).
But his analysis, including a synopsis on the evolution of Hawaii law on water rights, helps to explain the issue. His history doesn’t go into detail but that was not its purpose.
The Miike findings note that sugar planters in the mid-1800s were granted rights to divert water from streams by the Hawaiian monarchy, but say nothing about whether the monarchy tempered effects on downstream users.
In the post-overthrow era, Miike notes the territorial Supreme Court turned out rulings that treated water as property of landowners. But after World War II, the legal standing of water was modified by other court decisions until the 1978 Hawaii Constitutional Convention added a section that established water as a public trust.
The constitutional amendment led to a State Water Code – Hawaii Revised Statutes 174C – and sets up the Commission on Water Resource Management to create and enforce standards on use of the islands’ water resources.
One provision requires the water commission to decide instream flow – how much water should be flowing in each of the state’s streams, specifying:
"Each instream flow standard shall describe the flows necessary to protect the public interest in the particular stream. Flows shall be expressed in terms of variable flows of water necessary to protect adequately fishery, wildlife, recreational, aesthetic, scenic, or other beneficial instream uses in the stream in light of existing and potential water developments including the economic impact of restriction of such use" (HRS 174C-71(C)).
When the Hawaiian monarchy in the 1860s authorized sugar planters to divert water from streams to promote agriculture as an export industry, other uses of water were not a concern. Sugar growers were granted rights to draw on the least expensive sources to develop. The costs of installing diversions and miles of flumes and tunnels were high, but once infrastructure was in place, the water was essentially free for the taking.
Over the next century, the plantations effectively claimed first rights to waters in the streams – draining them dry during periods of low flow.
The State Water Code no longer will allow that. It requires instream flow that protects "fishery, wildlife, recreational, aesthetic, scenic and other beneficial instream uses." The standards are a major concern for the last Maui sugar plantation, which acknowledges it must give up some of its water but says if it loses too much of the stream water it has accessed over the past 150 years, it is no longer viable as a sugar plantation.
At what point Hawaiian Commercial & Sugar Co. is no longer viable as a sugar grower is probably unknown. If it were only growing sugar, the market would have rendered it not financially viable already.
Water is just one cost factor in an industrial agricultural operation. Labor is another and fuel and fertilizers another. All inputs contribute to productivity.
Reduce the water available and productivity will fall. Increase the cost of water by forcing the company to turn to more expensive sources and the cost of production increases – while the value of the crop remains subject to vagaries of the market.
The water commission must consider the economic impact of restrictions on existing uses as it balances the demand for restoration of stream waters as habitat for oopu and opae, for taro growers, for riparian claims and for appurtenant rights.
The commission is having to make its decisions when global climate change already is reducing stream flows. Its decision could speed the shutdown of the sugar company.
There are critics of the industry who support that outcome, even at the cost of hundreds of jobs. They don’t appreciate that if a farm can’t get cheap water for agriculture, it will develop expensive water and its lands for other purposes.
* Edwin Tanji is a former city editor of The Maui News. He can be reached at email@example.com. "Haku Mo’olelo," "writing stories," is about stories that are being written or have been written. It appears every Friday.