HONOLULU — The Hawai‘i Supreme Court, capping off a long-running water case, issued a landmark decision June 20 in favor of community groups Hui o na Wai ‘Eha and Maui Tomorrow Foundation that requires the state Commission on Water Resource Management to properly restore stream flows in Central Maui.
The two organizations were represented by Earthjustice and joined by the Office of Hawaiian Affairs.
The ruling, in a unanimous 134-page opinion by Justice Sabrina McKenna, overturned the 2021 decision by the commission, which failed to restore more stream flows to Na Wai ‘Eha after the 2016 closure of the Hawaiian Commercial &Sugar plantation. The court directed the commission to restore the stream flows as mandated by law.
Na Wai ‘Eha — also known as Maui’s “Four Great Waters” — comprises the Waihee River, Waiehu Stream, Wailuku River and Waikapu Stream, along with the surrounding watersheds from the mountains to the sea. The region in Central Maui was historically the island’s epicenter, supporting the largest continuous area of wetland kalo cultivation in the state.
It became the center point for colonization and the plantations’ appropriation of streams and traditional irrigation channel flows as private property.
“We are grateful that the supreme court continues to understand that the health and well-being of our community is directly linked to the health and well-being of our ‘aina, wai, and kai,” Hokuao Pellegrino, president of Hui o na Wai ‘Eha, said in a statement.
“This ruling once again makes clear that the protection of our streams and kuleana kalo farmers’ rights is of utmost importance. It further speaks to the resiliency of the Na Wai ‘Eha community and our commitment to malama our water resources, increase kalo production, and revive mauka-to-makai native ecosystems.”
Two decades ago local community groups partnered with Earthjustice, a nonprofit organization, to initiate a legal campaign aimed at reversing the legacy of water diversion and privatization left by the plantations to restore local ecosystems and rejuvenate Hawaiian cultural practices that depend on the natural flow of rivers and streams.
On June 25, 2004, Hui o na Wai ‘Eha and Maui Tomorrow Foundation, represented by Earthjustice, filed a lawsuit to restore stream flows and halt the unlawful water hoarding by Wailuku Water Co. — formerly Wailuku Sugar — and HC&S.
The case reached the Hawai‘i Supreme Court, which in 2012 overturned the commission’s 2008 decision to keep the streams largely dry.
A settlement in 2014 restored flows in all four streams for the first time in 150 years.
After HC&S closed in 2016 and the state began permitting surface water, it undertook its most thorough examination of water rights ever. The commission made its decision in 2021, leading to an appeal to the Hawaii Supreme Court, which heard arguments in December 2023.
The court agreed with the community groups and OHA, finding that the commission neglected its legal obligation to restore stream flows after HC&S ceased its water-intensive sugar operations.
In its 2021 decision the commission essentially maintained the flow levels that were established during HC&S’s full operation.
In a statement, the court observed, “Rather than proactively addressing the historic opportunity to restore stream flows,” the commission’s decision “appears to be the result of a passive failure to take the initiative to protect the public trust in the light of HC&S’s closure.”
The court also ruled that the commission did not meet its constitutional duty to protect Native Hawaiian rights dependent on stream flows, including growing kalo, gathering and fishing.
The court then concluded, “While thorough in many respects, the Commission’s final decision still does not evince the ‘level of openness, diligence, and foresight’ that is required where vital public trust resources like water are at stake.”
The decision builds on decades of precedent, including the Waiahole Ditch case in 2000 on O‘ahu and the court’s previous ruling on Na Wai ‘Eha in 2012.
“For two decades, Maui Tomorrow has been proud to stand with the water protectors of Na Wai ‘Eha,” Albert Perez, director of Maui Tomorrow Foundation, said in a statement.
“We are grateful that the Hawai‘i Supreme Court agrees that streams need to have enough water to support their life cycles, and that hard working kalo farmers need to have water in their lo‘i. We look forward to working with the water commission to implement the court’s decision.”
In addition to ruling on stream flows, the court dismissed several challenges by major water users regarding the commission’s decisions on their water allocations. Specifically, the court affirmed the commission’s limitation on stream water allocation for two golf courses.
It also rejected the claim of Mahi Pono — owner of HC&S’s lands — that it deserved more water for diversified agriculture than allocated by the commission.
The court also denied objections from Wailuku Water Co. — a former plantation now selling stream water — and contested the commission’s regulatory authority over its operations.
“The court confirmed that the state is in no way obligated to give away public water for private profit, including sacrificing streams to water golf turf,” Earthjustice attorney Isaac Moriwake said. “In this era of climate change, these rulings send a clear and strong signal for other critical water management decisions to come, including in West Maui.”
