WAIKAPU -Taro farmers and environmentalists said Friday that they would appeal a decision by the state Commission on Water Resource Management that ordered just a fraction of the water they hoped to see restored to the Na Wai Eha streams.
Earthjustice attorney Isaac Moriwake, who represented the groups that petitioned for greater stream flow, said legal precedent, the state water code and the Hawaii Constitution were on their side. He said he hoped the 6-year-old case would be resolved in their favor within another two to three years.
"The bottom line is we waited six years to get to this point, and I guarantee it will not take that long to get this resolved in the court system," Moriwake said. "If the law means anything, the court will find that the commission did not follow its public trust responsibilities in this case."
The water commission on Thursday ordered that a minimum of 12.5 million gallons of water per day be allowed to flow in Na Wai Eha streams, about a third of the amount that had been proposed. The decision restored water to only two of the four streams – 10 mgd to the Waihee River, and 2.5 mgd for the Waiehu Stream. Diversions at the remaining Iao and Waikapu streams would remain at existing levels.
The decision was welcomed by Hawaiian Commercial & Sugar Co. executives, who said the state’s last sugar plantation would go under without continued access to the streams, which it’s had for more than 125 years.
Moriwake said that although the groups he represents will appeal the decision and ask for more water, for now they would take what they could get, and not seek a court order to block the release approved by the commission from moving forward.
Ultimately, he said, his groups’ goal would be to get some water released to the remaining two streams and to see a higher volume of water added to Na Wai Eha overall.
The groups have argued that increasing flow would recharge underground aquifers, restore aquatic life and allow Central Maui taro farmers to survive and prosper.
The petitioning groups aren’t the only ones dismayed by the commission’s decision.
Commissioner Dr. Lawrence Miike, who served as the contested hearings officer for the case, wrote a scathing dissent to the decision that accused the panel’s majority of protecting the interests of private corporations over the public trust of water.
In an e-mail to The Maui News on Friday, Miike wrote that the state Supreme Court rejected the commission’s initial ruling in the legal precedent-setting Waiahole ditch case in 2000. In that case, when Oahu Sugar Co. folded, the justices said stream restorations came before business interests, he maintained.
"I am certain my view will prevail, given what the Supreme Court has said in the Waiahole cases, but of course, it will take years to undo the majority decision," Miike wrote.
Miike had recommended restoring a combined 34.5 million gallons per day to all four of the Na Wai Eha streams.
Currently up to 70 million gallons per day pour through the four waterways, around 83 percent of which is siphoned off by Hawaiian Commercial & Sugar and Wailuku Water Co., according to taro farmer and Hui O Na Wai Eha President John Duey.
Duey said he was baffled by the commission’s decision. While trying to accommodate big business, the commission managed to turn the normal burden of proof in stream-use permits on its head, he said.
Moriwake said that the Supreme Court ruling had clearly stated that the health of the streams must take priority over economics.
But in the Na Wai Eha decision, the commission "bent over backwards at every point to accommodate the private diverters," he said.
Duey called the decision "disturbing." He felt that the commission was swayed by demonstrations by HC&S supporters as well as public comments by Gov. Linda Lingle and other powerful politicians in support of the plantation.
"The whole thing is a kick in the butt for the traditional customary users, the taro farmers, and the people who use the central water system as a whole, because (restoring streams) would recharge the aquifer," he said. "It disrespects the state water code and constitution."
Opponents of the commission’s decision also said they were confused as to why the commissioners would write off the Iao and Waikapu streams by not ordering any water back into them.
"The public trust principal is to give something to the future, and instead they gave us two streambeds as dry as a cemetery," Moriwake said.
Hokuao Pellegrino is a Waikapu stream taro farmer who testified in the contested case hearing. He said his future is on the line because of the commission’s choices.
If the commission went with Miike’s recommendation, he and his family could have gone from one taro patch, or loi, to 12. It would have allowed Pellegrino to make a living off of his 2-1/2-acre Noho’ana Farm and turn what is already a Native Hawaiian cultural day camp into a poi shop as well, he said.
"Of course, jobs are very important," he said. "I may not be able to employ 800 people, but I can feed 800 people – if I was able to grow on all of my land."