Part 4: A serious look into current water issues finalizes the series.
Water is critical to our existence on this little island called Molokai in the middle of the Pacific Ocean, but many times it’s mired in law. Most of Hawaii’s water laws are based on English common law with a Hawaiian twist that includes native gathering rights. In the state constitution it states, “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua`a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Island prior to 1778, subject to the right of the State to regulate such rights”.
In 1990, the State Legislature enacted the State Water Code that established a priority of water rights, with Hawaiian Homesteaders and taro farmers on their ancestral lands at the top of this list. Hawaiian Homesteaders have first rights to this water and also the right to reserve water for future use of their lands. This priority is part of the state’s trust responsibility in enforcing and implementing the Hawaiian Homes Act of 1920, transferred to them by the federal government when Hawaii became a state. Yet on many occasions, the state agency responsible for enforcing the State Water Code, the Department of Land and Natural Resources Commission on Water Resource Management (CWRM), has not interpreted the law correctly.
As a consequence, legal challenges initiated by residents and homesteaders have resulted in the courts overturning these decisions. This has happened on Molokai a couple times in the last ten years, with one of the cases still pending in the State Supreme Court. There’s a concept in law called precedence as in “Precedence was set in a landmark court case that overturned equal opportunity.” Precedence means past legal decisions still have a bearing in future cases, especially if the conditions of the case are the same. This holds true for water laws. Decisions that happened in the past have a way of influencing the outcome of future cases.
In Hawaii, one important water case is still changing how we view water decisions and this is the Waiahole Decision. One aspect of this decision is that a certain amount of water must be left in the streams so fish and native stream life such as o’opu, hihiwai, and others can continue to live there and traverse from the ocean to the mountain to complete their life cycle. This case applies to Molokai as well, where we have to allow a certain amount of water to move down Waikolu Valley so these same native species can continue their own ‘circle of life’.
A case closer to home is the Waiola Case in which Molokai Ranch attempted to drill a new well behind Kaunakakai town. The plan was to move about 1.26 mgd of water from Kaunakakai to Kaluakoi. CWRM approved the drilling permit, but attorneys for homesteaders and residents appealed the decision. A contested case hearing was held where each side was able to present its case. Even with mounting evidence against allowing a new well, the hearing officer supported approval of the well permit. The decision was again challenged by attorneys for the homesteaders and residents, and appealed to the State Supreme Court.
A couple of years ago, just when the EC/Molokai Ranch Land Use process began, the CWRM decision was overturned by the State Supreme Court. There may be similarities between the Waiola case and the new request by Molokai Properties to withdraw 1 million gallons daily from Kakalahale Well, also above Kaunakakai, and precedence may have been set in many issues related to the earlier Waiola Case. What this means is the same information used against the Waiola could be used against this new case.
Currently, the Molokai Homestead Farmers Alliance, a concerned group of homestead farmers and other Molokai citizens, are planning to intercede with the ranch’s request to tap 1 mgd of brackish water. Whether Waiola Well and Kakalahale Well will have the same impacts on the issues identified in the Waiola Case have yet to be determined. Critical issues were raised in the Waiola case. The burden of proof in determining impacts lies with the Ranch, and the court felt they weren’t able to prove their new well wouldn’t impact the environment, the aquifer, and homesteaders rights to water.
The Ranch was unable to show that the pumping of Waiola well would not affect ‘practicing traditional and customary native Hawaiian rights’. As a result of the decision, the State Supreme Court recognized the Hawaiian Homes priority, and determined Molokai Ranch failed to show that they would not impact on DHHL wells in Kualapuu. The court also concluded that the state must set aside water for Molokai homestead areas for present and future needs. Bill Meyer, now retired US Geological Survey hydrologist was able to identify the impact on Hawaiian Homes wells and said that pumping the Waiola Well at 1.26 mgd would drop the Kualapuu well field by 1/2 foot, and rise the transition zone by 20 feet. As a result, homesteaders would lose 160,000 gallons each day due to the pumping of Waiola Well. At that time, Hawaiian Homes were only pumping .367 mgd, so homesteader would potentially lose close to half of their water if Waiola Well was approved at that time.
Today, Hawaiian Homes takes twice as much water as it did then, so the impacts could be greater. The last word we learn is finite, which means ‘limited’ as in ‘Water is a finite resource’. As I end this series on water, we can look at theories, models, numbers, and all kinds of science, but the only thing that really matters is how we, as an island community, decide this precious finite resource should be used. Native Hawaiian and Hawaiian Homes rights definitely figure into this equation, but there are also some basic questions we need to ask ourselves. Do we use our finite water to build first homes for our residents, including homesteaders, or do we use it to build second homes for newcomers who already have homes elsewhere? Are we willing to dewater one part of the island to a dry, desolate part of the island green? How much water should we use now, and how much do we reserve for the next generation to decide how they want to utilize it? These are just some of the important decisions we have to make about one of our most important finite resources, water. Aloha.