Legal notices published Wednesday in The Maui News and the Honolulu Star-Advertiser listing people, churches, and commercial and other entities with claims to kuleana water rights in the Na Wai Eha surface water management area are part of a “historic” effort by the state water commission to recognize those appurtenant rights.
“This is the first time in its history that the commission is formally going to permanently recognize kuleana rights,” said Isaac Moriwake, an Earthjustice attorney, Wednesday.
He represented Hui o Na Wai Eha and Maui Tomorrow, which along with the Office of Hawaiian Affairs, earlier this month claimed a major victory for appurtenant or kuleana water rights in the Hawaii Supreme Court. Moriwake and his clients got the high court to vacate a state Commission on Water Resource Management decision in a dispute over mauka diversions of the surface water of Na Wai Eha, or the four great waters of Central Maui – Waihee, Waiehu, Waikapu and Iao streams.
Currently, surface water is diverted from the four West Maui Mountain streams for Central Maui sugar cultivation and domestic use, and Native Hawaiian and environmental groups are seeking to have more water returned to streams to revive the natural habitat and to allow for taro cultivation.
The publication of those with claims to kuleana water was not directly related to the Hawaii Supreme Court ruling Aug. 15. However, as part of the process of recognizing kuleana water rights, water commission officials will be estimating how much water was historically used by landowners.
The kuleana water inventory can only help as the state water commission revisits the allocation of Na Wai Eha water, Moriwake said.
“There has been a historical difficulty to have these rights recognized,” he added.
Maui water commission member Jonathan Starr explained Wednesday that appurtenant water rights are those attached to parcels of land that were cultivated, usually in a traditional staple such as taro, at the time of the Great Mahele in 1848.
Kamehameha III changed Hawaii’s traditional system where land was held in common and administered by chiefs and others to one that included fee simple ownership, according to hawaiihistory.org.
When the king gave land grants, Hawaii law “recognizes that such lands retained rights to the amount of water necessary to continue to cultivate crops,” Starr said.
Appurtenant water rights are set out in the state constitution and the state Water Code but have not been acted on until now, Starr said. Those rights have the highest priority of all water rights in the state, he added.
About a year ago, Na Wai Eha was designated as a state water management area, and the state became responsible for ascertaining appurtenant water rights, Starr said.
“It is a completely new thing for the water commission,” said Robert Chong, a planner with the state water commission.
Those on the published list had a surface water use permit but had to provide additional information for their appurtenant claims, Chong said. Applicants have to verify that there is an appurtenant water right on the land and to “quantify the amount of water” that may be used on the parcel.
“One can apply to be able to utilize that amount of water on those same lands,” said Starr. “It doesn’t relate to the person. It relates to the parcel of land.”
Those on the list of more than 200 claims include individuals, commercial companies, such as Aloha Poi Factory and Wailuku Water Co., and other entities, such as Emmanuel Lutheran Church.
Objections to those making claims are to be accepted until Sept. 19 by the water commission, which will make the final decision on appurtenant claims, the legal notice said.
How long this process takes will be determined by how many objections there are and how complicated those cases are, said Chong. Sorting through the claims and estimating the amount of water for each claim will “take a while,” he said.
“It won’t be an easy process,” he added.
Chong said that the commission will be using an irrigation model developed by a University of Hawaii professor as well as other documentation. Complicating matters is the fact that there is less water now than at the time of the Great Mahele, he added.
There could be more opportunities for people to apply for kuleana water rights in the future because appurtenant water rights cannot be extinguished, under the state Water Code, said Starr.
“I think it’s exciting,” he said. “This is the first time a process like this has been done anywhere fulfilling not only the Water Code, but a constitutional mandate.
“I firmly believe there are people who would like to go back to growing kalo (taro), sweet potato and other traditional crops,” Starr said. “The more food we produce for local consumption, especially with cultural ties, the better.”
Not everyone has a glowing view of this new process. Waihee resident Johanna Kamaunu said she’s concerned that people with kuleana rights might lose them by applying for appurtenant water rights.
She said the state actively pursued Native Hawaiians, wanting them to fill out applications for appurtenant water rights. They asked for genealogical information, tax map keys and for information on how they came by water rights and how much water is used, she said.
“They wanted everything,” she said.
“It never tells you what happens when you sign and apply for permits,” Kamaunu said.
She said that by applying for appurtenant water rights, kuleana owners are subjecting themselves to the laws of the state water commission, and thereby, she contends, relinquishing their kuleana rights.
For more information, go the water commission website at hawaii.gov/dlnr/cwrm/sw_nawaieharights.htm or call the Stream Protection and Management Branch at (808) 587-0234 or toll free from Maui at 984-2400, ext. 70234.