For 120 years, East Maui families and farms have competed with large agribusiness corporations for one of life’s precious resources - fresh water. Fed by approximately 110 streams, East Maui by all accounts should have enough water and more to supply the needs of its residents and farmers. But an average of 160 million gallons a day, about as much as the densely populated island of O`ahu, uses, is carried off by the East Maui Irrigation system to the plains of Central Maui. The system, a series of ditches, tunnels and pipes built nearly a century ago, is owned and operated by landowner Alexander and Baldwin or its subsidiary East Maui Irrigation Company. Capable of collecting & transporting 445 million gallons of water a day, the EMI system is a monument to the fading era of sugar plantations. Ironically, as a condition for receiving royal permission to take this water from this culturally and historically rich area, Henry Baldwin in 1876 promised not to injure the interests of downstream water users. Over vocal protests by the taro farmers of the day, who feared the repercussion of the diversions being allowed, the Kingdom agreed to the massive transfer of water from one end of the island to the central valley sugar plantations.

As the sugar industry grew during the late 19th to 20th century, so did the thirst for East Maui’s waters. Today, housing subdivisions, big box retailers and golf courses have replaced much of sugar. The need for water, however, has not abated. The longstanding and pervasive diversion of East Maui’s waters has had a profoundly negative impact on the traditional and customary practices of Native Hawaiians. Along this rugged and beautiful coastline, a subsistence lifestyle is not an optional activity, it is a mainstay. The gathering of fresh water mollusks hihiwai & shrimp opae or the cultivation of ancient loi fields to grow kalo continues to be a struggle because of the lack of water. In Keanae-Wailuanui, the continuation of these practices has earned the area the unique distinction of being designated by Maui County as a “cultural landscape” deserving of protection for its unique cultural resources.

With a clear grasp of what could be lost forever, families & farmers from Wailuanui and Keanae decided to reverse the century’s old practice. In 2001 Na Moku Aupuni O Koolau Hui challenged the state Board of Land & Natural Resources practice of repeatedly issuing annual permits to Alexander & Baldwin or East Maui Irrigation to continue the water diversion. Under the law, the BLNR has an ongoing duty to protect this public trust resource from unbridled exploitation for commercial gain. Accordingly, Na Moku demanded a contested case hearing on whether the BLNR should allow A&B to continue diverting water from these public trust lands. In the course of the lengthy hearings that ensued, Alexander and Baldwin revealed that it was using an egregious amount of water to irrigate an acre of land -- 17,000 gallons per day in the wet season and 34,000 gallons per day in the dry season. Nevertheless, the company argued it needed every drop it diverts, even when it admitted it sells water to Maui Land and Pineapple Company, when its diversions exceed a certain amount. The decision from the contested case hearing was appealed and a circuit court judge remanded the case to the BLNR to deal with issues related to the annual permits.

With the help of NHLC, the community also in 2001 filed petitions to amend the interim instream flow standards to restore more flow in 27 East Maui streams with the State Commission on Water Resource Management. Constitutional and statutory provisions affirming Hawaiian traditions mandate the restoration of water levels in streams to support taro farming and subsistence gathering. Na Moku was able to persuade the United States Geologic Survey agency to conduct stream studies and based upon its findings, provide the State Commission on Water Resource Management with different streamflow scenarios. By statute, the CWRM is supposed to act upon Na Moku’s petition within a year of filing any petition for amendment of an interim instream flow standard.

In March 2007, the BLNR issued an interim decision to grant Na Moku’s members partial relief while the contested case hearings proceeded. This decision represents the first time a government agency has returned water from ceded lands that it previously leased out to taro farmers demanding increased flow to support their traditional taro farming. The decision also makes provisions for correcting any errors in its terms that could affect the ability of taro farmers to obtain sufficient water to support taro growing. Na Moku is working to implement this decision as it expands its taro growing in Wailuanui Valley and continues to push for the legal respect it deserves from the state agencies managing the resources of the valley.

The CWRM has been far less responsive, despite clear judicial directions from past cases such as, Waiahole I, Waiahole II and Waiola, which collectively uphold the mandate to protect streams by restoring stream flows. CWRM has even failed to adhere to the statutory deadline to act. Accordingly, Na Moku will be seeking extraordinary judicial relief to compel this public trustee to perform its duties it owes Hawaiian taro farmers and subsistence gatherers who depend so heavily on free flowing streams to sustain their traditions and customs.

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