photo unavailable Gathering Place

Isaac Moriwake

‘Plantation era’ politics
still determines which way
Hawaii’s water flows

A few weeks ago, the Hawaii Supreme Court reversed the decision of the state Commission on Water Resources Management for the second time in the "Waiahole Ditch" case on Oahu, adding another round to litigation that has already stretched more than 10 years. Now is an opportune time for we, the people of Hawaii, to assess the state of our water law.

At first glance, we seem to have come a long way. Not too long ago, large plantations drained public streams dry for profit, heedless of the impacts on the environment and local communities. That all supposedly changed when the Supreme Court, in its landmark McBryde decision in 1972, confirmed that the plantations wrongly assumed water was their private property, and when the people of Hawaii amended their Constitution in 1978 to confirm that water is a "public trust" -- a precious common inheritance belonging to all, not just a select few. The 1978 Constitutional Convention also established the commission as "trustee" of this resource.

But how much has really changed? Nearly 30 years after the 1978 Con-Con, and 20 years after the Legislature enacted the State Water Code, progress remains limited. What's more, all indications show we are headed backwards:

>> The commission is packed with appointees representing former plantation interests --the same companies that have historically monopolized stream flows statewide and that continue to hoard and waste water even though their operations have ceased. The Lingle administration has made no secret that it prefers to eliminate the commission. But incapacitating it through one-sided special interest appointments (and staff and funding cuts) is equally effective.

>> The Water Code is under attack at the Legislature by the same ex-plantation corporate circle. Last session, an administration-sponsored bill seeking to carve out a special "public trust preference" for corporate agribusiness expanded into a full-blown attempt to overhaul the code to cater to such interests. Could an attempt to amend the state Constitution to erase the public trust mandate of '78 be next?

>> The commission has been reversed in every appeal of a major water dispute. In each case (twice in Waiahole and once in the "Waiola" case, in which the commission gave Molokai Ranch a water permit for massive development on Molokai), the Supreme Court ruled that the commission did not do the minimum necessary to ensure that public rights in water for purposes such as ecological protection, recreation, aesthetics and Native Hawaiian uses were adequately protected.

>> The commission has yet to establish a single instream flow standard -- an essential conservation and planning tool that sets minimum stream flows to prevent undue impairment of public instream uses and provide a clear limit on offstream uses. In its latest Waiahole opinion, the Supreme Court had to "remind" the commission "that 17 years have passed since the Water Code was enacted requiring the Water Commission to set permanent instream flow standards by investigating the streams."

The undisputed key to fulfilling the commission's mission is long-term, comprehensive planning. But the commission seems content to wait until water mismanagement reaches a crisis. The same sort of conflict that erupted into the Waiahole litigation is repeating itself on Maui, where demands for present and planned development far outstrip water supplies. The commission's lack of planning and oversight is compelling more rounds of "regulation-by-litigation."

Water is the most vital of resources, even more so in our island home. Something this critical for all must be managed based on law, sound science, and planning.

Instead, decades after the plantation era, pure politics and special interests continue to rule our water future. The once-promising chronicle of Hawaii water law is degenerating into another tale of "the more things change, the more things stay the same."

Isaac Moriwake is an attorney with Earthjustice and a former law clerk for the Hawaii Supreme Court.



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