An Upstream Battle Over East Maui Water Rights

east maui water rights
Images by Bailey Rebecca Roberts

Activists residing in Wailuanui and Ke‘anae are continuing to untangle the complex politics of East Maui water diversion to reinstate this natural resource. Their efforts are part of decades-long litigation and the largest water rights case in the state.

“Wai” is the Hawaiian word for freshwater. Said twice—waiwai—it means wealth. By that measure, the small villages of Ke‘anae and Wailuanui in East Maui should be among the wealthiest. Midway along the scenic Hāna Highway, they sit at the base of the Ko‘olau Forest Reserve, which receives as much as 280 inches of rain per year. Rain-fed streams run from the summit to the sea here, passing through the villages and saturating residents’ lo‘i kalo with fresh water along the way.

Ed Wendt lives and grows kalo in Wailua, as his ancestors have for five generations. From his living room window, he can see Waiokāne, a waterfall that thunders down the eastern flank of Haleakalā. In 1991, he and his neighbors noticed the village streams slow to a trickle and the water in their lo‘i turn stagnant. They sought help from the Native Hawaiian Legal Corporation. Together they prepared to fight one of Hawai‘i’s oldest and most powerful companies: Alexander and Baldwin.

Sugar Flow

The fight dates back to the late 1800s, when sugar plantations began proliferating throughout the Hawaiian Islands. To grow their thirsty crop in the arid plains, sugar planters sought to tap windward streams. In 1876, the government of King Kalākaua issued the first water license to bring water to the plantation of Haiku Sugar Company, a predecessor to Alexander and Baldwin, and three other plantations in central Maui, a plan conceptualized by Samuel Alexander.

The agreement came with a caveat: “The existing rights or present tenants … along said streams shall in no wise be lessened or affected injuriously.” Sure, the king said, use the water, but don’t harm the kalo farmers who rely on these same streams.

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FLUX An Upstream Battle Keanae

Problems arose from the start. While kalo farmers channel water through their lo‘i and return it to the stream, sugar ditches carry the water away. As plantation engineers dug miles of ditches and tunnels, downstream kalo farmers saw their water sources start to dry.

In 1881, when sugar magnate Claus Spreckels sought a water license, 13 residents of Ke‘anae and Wailua wrote a letter in Hawaiian imploring Kalākaua’s land commissioners: “Do not allow any water rights of the Crown Lands of Honomanu, Ke‘anae, and Wailua to be lost to Claus Spreckels. … We already know what the millionaire has done with the water on other lands.” That lease was approved, and another was granted to H.P. Baldwin in 1902 despite the protests of Nāhiku homesteaders.

Water in Hawai‘i is a public trust, enshrined by the state’s constitution. Yet for close to 150 years, sugar plantations and their subsidiaries have been allowed to capture and distribute water like a commodity. This is most pronounced on Maui, where sugar plantations diverted as much as 63 percent of the water from mountain streams as of 1990.

Legacy Water

As the legacy water licenses began to expire in the 1970s and 1980s, the State of Hawai‘i issued temporary, year-to-year permits. Alexander and Baldwin has four such permits that enable it to collect water from 33,000 acres of state land. The company then sells some of this water to Maui County at double or quadruple the rate paid by the company depending on the cost of leases and amount of rainwater captured.

The county purchases water from Alexander and Baldwin’s East Maui Irrigation system to supply its Kamole Weir Water Treatment Plant, which produced 1.85 million gallons per day in 2014. It also purchased 3.5 million gallons per day for Kula Agricultural Park in 2015. In total, Maui Department of Water Services can receive up to 16 million gallons daily from the company’s Wailoa ditch.

I call that cultural genocide. What they did to us, I don’t know how I survived. You can only get pounded on for so long.

FLUX An Upstream Battle Keanae

Alexander and Baldwin’s East Maui Irrigation system consists of 388 stream intakes feeding into 74 miles of ditches, tunnels, pipes, and flumes. It’s one of the largest private water systems in the United States, capturing around 134 million gallons a day in the winter and 268 million gallons a day in the summer. During heavy rainfall, it can capture up to 450 million gallons a day.

“As time went on, their diversions got more efficient,” says Ed’s wife, Māhealani Wendt, a community advocate and poet. “They were determined to take every drop of water, and they did.” Māhealani met Ed when he and his fellow kalo farmers approached the Native Hawaiian Legal Corporation for help. She was the executive director at the time.

“At first, it was one person who wanted to have one stream released,” Māhealani says. “We encouraged the community to organize because we realized it would be a big undertaking.”

The farmers formed Nā Moku ʻAupuni ʻO Ko‘olau Hui. After consulting with kūpuna from the area, they decided to petition the Hawai‘i Commission on Water Resource Management to restore all 27 streams in East Maui’s Ko‘olau district.

Legal Action

Nā Moku’s legal action would force the water commission to establish in-stream flow standards for each stream, determining how much water could be removed without detriment to instream users such as kalo farmers, recreational swimmers and fishers, and species native to the streams.

“We were confident that the law was on our side,” Māhealani says. “Before we accept a case, we do an exhaustive assessment to gage the viability and chances of winning. We never lost faith that it was right and ultimately we would prevail. But we weren’t prepared for the political dimension of this case, which was the most harrowing.”

In 2002, as the farmers pursued their claim to the water, Governor Ben Cayetano appointed Alexander and Baldwin vice president Meredith Ching to the seven-member water commission board. In 2016, after the Hawai‘i Supreme Court ruled that the state could no longer continue to issue temporary, year-to-year water permits without conducting proper environmental assessments, Alexander and Baldwin sought help from the state legislature. Legislators passed a bill extending the permits for another three years.

The legal tug-of-war to establish in-stream flow standards stretched on for two decades. Some of the elder plaintiffs passed away before seeing its conclusion. Children grew up and moved away without the ability to grow kalo. “There’s a whole generation of young farmers that we lost,” Māhealani says. “There was no opportunity for them, the waters were gone.”

“I call that cultural genocide,” Ed says. “What they did to us, I don’t know how I survived. You can only get pounded on for so long.”

At last, in June 2018, Nā Moku ʻAupuni ʻO Ko‘olau Hui won a significant victory. The water commission determined that the in-flow standard for 10 of the 27 streams—those that run through Ke‘anae and Wailua—was 100 percent, thus ordering the full restoration of their water. When the decision was announced, Ed expressed his gratitude: “Our community spread its wings over the whole of the Ko‘olau and accomplished something great for the waters of Kāne, for all the people of Ko‘olau, for all people of Hawaiian ancestry, and for our public trust.”

Māhealani smiles. “There’s a group of young adults from Hāna out here working today. Now that we have the water, we’re back to farming,” she says. “We have to start over. It will take years to really get it going and restore our plants. One plant produces a bunch of huli, or shoots, that you break off and plant again. This is what we’re in the process of doing. It’s what we hoped for.”

The water commission also required the partial restoration of another seven streams, with the aim of reviving natural riparian habitat. Native stream species embody the Hawaiian principle of mauka to makai, the living connection between the mountain and the ocean. ‘O‘opu (gobies), ‘ōpae (shrimp), and hīhīwai (snails) spend their adult phases in the streams and their juvenile stages in the sea. For many years, ditches and other diversions have prevented these animals from completing their lifecycles.

“When [Alexander and Baldwin] first started to release water, it didn’t take long. The ocean and stream fish started to come back,” Ed says. “We are already seeing the return of the ‘o‘opu and the hīhīwai.”

The June 2018 ruling was historic, a true victory to celebrate. But Ed and Māhealani know that the battle never really ends. Alexander and Baldwin closed its last sugarcane operation in 2016. The sugar plantation era is over—and yet the ditch infrastructure remains. Should a private company still be in charge of the spigot?

The law granting a three-year extension to Alexander and Baldwin’s water permits expires in June 2019. When it does, Māhealani suspects the company will apply for a long-term license to continue tapping the remaining streams not specified by the recent ruling. Alexander and Baldwin has said that, beyond the 20 million gallons per day it supplies Maui County, it needs 89 million gallons per day to transition 31,000 acres of former cane fields to diversified agriculture, including cattle and energy crops.

Ed is tired after many years of fighting. He hopes that the quest to restore his village’s streams will inspire other communities to assert their rights—especially as climate change renders water even more precious. He has heard that law schools across the country are already teaching the East Maui case. “That makes me happy,” he says. “All the years that I represented our community, I never did ask for money. I did it for sheer love.”

This ran in our “explore” section, click to read the other stories: Deconstructing Statues and Bibliophilia for Botanicals.

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