Free the streams: End corporate water theft
Revocable permits: Permanently temporary
Water diverters—like Alexander & Baldwin (and now Mahi Pono) and Kauaʻi Island Utilities Cooperative—are required by law to obtain a permit or lease to access the public lands on which the public water is diverted. Long term lease applications require in depth review processes, like the completion of an Environmental Impact Statement and watershed management plans. Because of their historic influence on Hawaiʻi’s economy, corporations like A&B have received a lot of special treatment over the years, like access to public water for their own profit. For years, the Board of Land and Natural Resources issued short term, “holdover” revocable permits for water diversions, allowing diverters to avoid the rigorous review needed for a long term lease.
In 2016, the First Circuit Court ruled that BLNR’s use of revocable permits violates state law and all existing permits invalidated. Soon thereafter, the legislature amended the law to legalize the hold over of revocable permits for three more years in order to provide water diverters time to prepare their long term lease applications. This law allowed for the continued theft of millions of gallons of public water every day for private profit and rewarding diverters for manipulating the permitting system for years.
Since the passage of HB 2501 (now Act 126), BLNR has approved the renewal of revocable permits every single year—with little accountability to the diverters to follow up on permit conditions from previous years or to seriously navigate the process for a long term lease. A&B and KIUC both applied for long term leases in 2001 but either has yet to complete an Environmental Impact Statement.
The three year mark created by Act 126 ended in June 2019 meaning that revocable permits are no longer to be issued in a “holdover” fashion. In anticipation of this, A&B and other diverters pushed for a handful of bills to extend the use of revocable permits. After a long, uphill legislative session full of closed door deals and misleading actions by legislators—the people prevailed and the bills, mainly HB 1326, was defeated!
How did we get here: From Sugar to Development
Commercial sugar cultivation in Hawaiʻi began in the 1800s, with the first successful sugar mill in Kōloa, Kauaʻi. The Great Mahele in 1848, displaced Native Hawaiian people from their land and allowed the sale of land, paving the way for massive sugar plantations. Traditional agriculture and gathering practices rapidly declined as lands were seized and the Native Hawaiian population was decimated.
With the “ideal” climate in Hawaiʻi and a year round growing season, sugar cultivation quickly grew, primarily for export. The sugar industry was tightly controlled by “The Big Five”—Castle & Cooke, Alexander & Baldwin, C. Brewer & Co., H. Hackfield & Co., and Theo H. Davies & Co. These corporations quickly gained control over Hawaiʻi’s economy and these missionary descendents and their families played a central role in the illegal overthrow of the Kingdom of Hawaiʻi in 1893.
Sugarcane is a water intensive crop. In the early 20th century, it took one ton of water to produce a single pound of refined sugar. Plantation owners sought out massive amounts of freshwater, building diversions in streams, irrigation channels, and tunnels to direct millions of gallons of water a day from flourishing streams to their plantations—to the detriment of native stream ecosystems and residents downstream. Sugar was king. “The Big Five” made extreme profits and their corporations grew as ecosystems were stripped of its resources and numerous native traditions and species were lost. At its prime, there were 47 sugar mills in Hawaiʻi. But nothing lasts forever in a capitalist society, as labor costs and international competition increased, one by one, sugar mills began to close—with the last closing on Maui in 2016.
With the fall of sugar, it seemed as though it may be possible for water to be returned back to the streams. In 1972, the Hawaiʻi Supreme Court that Hawaiʻi’s waters were a public trust resource and that the courts during the reign of the plantations falsified the original water laws. From this decision stems the public trust doctrine and Hawaiʻi’s water code. But to no surprise, the large landowners had other plans. Many of “The Big Five” shifted from agriculture to investment, primarily in real estate investment and land management. They either developed their land, sold it off to be developed or kept it as fallow agriculture lands. And the water went with it, to feed the developments or to be banked or dumped, because they knew the power that water held.
For decades after the fall of sugar, waters continued to be diverted regardless of land use and with no environmental or need-based assessment. But communities fought back. Starting in 1988 in Waiāhole, Oʻahu, communities throughout the islands have come together—and won—to correct unjust, century old water theft and fight for the return of water to their streams.
Water cases: Streams of hope
OʻAHU//
In the early 1900s, the Waiāhole Ditch was built to divert water from streams on the windward side to irrigate sugar fields in central Oʻahu. More than a decade after the last sugar mill closed on Oʻahu, water was still being diverted from windward streams for private business interests. Taro farmers and windward residents petitioned for the return of the diverted water to Waiāhole Stream, requesting that the State Commission on Water Resource Management set instream flow standards for the stream to include the diverted waters in the ditch system. The Water Commission went on to permit the private interests to continue to divert water and failed to return enough water to maintain Waiāhole stream’s ecosystems.
The farmers and community groups appealed and the case went to the Hawaiʻi Supreme Court in 2000. In a groundbreaking decision, the court ruled that the Water Commission vacate the permits issued, reevaluate the instream flow standards, and make a decision based on newer evidence. After a 15 year fight, waters were returned to Waiāhole Stream. This historic ruling set the precedent for many water fights to come by upholding that the public trust doctrine require private interest requests to use public resources for private gain be closely scrutinized to ensure that the public interest in the resource is fully protected, and that alternative water sources be considered. Read more about this historic fight here.
MAUI//
Building on the foundation set by the Waiāhole case, Hui o Nā Wai ʻEhā and Maui Tomorrow set out to return streamflow to the “Four Great Waters” of Maui. They fought diversions built by Alexander & Baldwin (A&B) at the start of the plantation era that diverted water their Central Maui lands. After hosting years of hearings, the State Commission on Water Resource Management failed to return sufficient waters to Nā Wai ʻEhā and the community appealed. In a landmark decision in 2012, the Hawaiʻi Supreme Court ruled that the commission must revisit their decision and uphold the public trust doctrine. Two years later, millions of gallons of water was returned to ‘Īao and Waikapū streams and for the first time in over a century, all four streams flowed. Still yet, parts of ʻĪao and Waikapū streams remained dry so there was not mauka to makai flow. With the close of the last HC&S sugar mill on Maui in 2016, Nā Wai ʻEhā petitioned the water commission to increase the amount of water returned to the streams. Read more about Nā Wai ʻEhā here.
Alexander & Baldwin also constructed a large system of diversions and grates to redirect stream water from East Maui through pipes to Central Maui for use in sugarcane agriculture. This diversion system is maintained by East Maui Irrigation (EMI), a subsidiary of A&B. A&B requires a permit or lease to access the land on which they divert their water. In 2001, A&B applied for a long-term lease to access the land which also included the annual renewal of short-term revocable permits while the lease application was being considered. The state can legally issue revocable permits but the law does not allow for the issuance of “holdover” revocable permits like those issued to A&B. The Department of Land and Natural Resources invented this concept for the benefit of A&B and its subsidiaries.
Na Moku Aupuni O Ko‘olau Hui, Maui Tomorrow, and East Maui residents challenged A&B’s lease application and began an almost 20 year legal battle. Year after year, the BLNR renewed A&B’s (illegal) holdover permits, continually allowing them to divert 160 million of gallons of water each day with no studies on the impact on the environment or surrounding communities. In 2016 the legislature passed a law, legalizing the practice of holdover permits. However, little by little water was returned to East Maui streams—notably in 2016, BLNR capped the amount allowed to be diverted at 80 million gallons, the removal of structures impacting the health of the native stream species, and enforced the full restoration of eight East Maui streams. A groundbreaking vote by the Commission on Water and Resource Management in 2018 fully restored 10 East Maui streams and required the return of more water in several others. This historic water case changed the landscape of water rights in Hawaiʻi. But the fight is not over—while many streams of East Maui have been restored, there are streams that continue to run dry. Several have yet to have their voice heard while others remain dry because of empty promises made A&B.
KAUAʻI//
Mount Waiʻaleʻale is one of the wettest places on Earth and a prominent sacred mountain in Hawaiian culture. There are several streams that flow directly from Mt. Waiʻaleʻale, two of which—Waiʻaleʻale and Waikoko Streams—have been diverted for over 100 years. The diversions were originally constructed for the Līhuʻe Plantation Company for sugar and are now operated by Kauaʻi Island Electric Utility Cooperative (KIUC). KIUC currently diverts 30 million gallons of water a day, through revocable permits issued by the Board of Land and Natural Resources, to power two small hydropower plants that contribute only 1.5% of the overall power KIUC produces. After the water is diverted, it flows downstream onto private lands owned by Grove Farms. BLNR most recently renewed KIUC’s permit to divert water in December 2018.
The State Commission on Water Resource Management is concurrently in the process of setting instream flow standards for Waiʻaleʻale and Waikoko streams. In August 2018, the commission heard over eight hours of public testimony, the majority in favor of returning more than 30% of the streams’ base flow. During deliberations, KIUC requested a contested case, halting decision making. Kauaʻi community group Hui Hoʻopulapula Nā Wai o Puna and the Department of Hawaiian Homelands also requested contested cases. Learn more here.
For over 100 years, waters were diverted from Waimea River for sugar cultivation causing parts of the river bed to be bone dry. Even after the last sugar mill on Kauaʻi ended its production in 2010, waters were still diverted with little justification or use. But in a huge victory, waters now flow mauka to makai through Waimea Canyon, returning waters to be used for traditional agriculture and Hawaiian homesteads. This historic deal was able to be struck through mediation and voluntary agreement—a path paved by previous water case litigation like Waiāhole and Na Wai Ehā. In 2017, the State Commission on Water Resource Management voted for the immediate return of waters to Waimea River, follow-up for the return of more water, and the modification of diversions to allow for the return of native stream species. Also remarkable about this decision is the potential for a modern hydro power plant, that does not require the diversion of water but rather keeps the water in the river, to replace an inefficient 100-year old hydropower plant. Read more here.