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OHA: Office of Hawaiian Affairs

Statement from OHA Chair Lindsey on Nā Wai ʻEhā case decision

STATEMENT FROM OHA BOARD CHAIR CARMEN “HULU” LINDSEY ON NĀ WAI ʻEHĀ CONTESTED CASE HEARING FINAL DECISION AND ORDER

Yesterday’s Nā Wai ʻEhā decision and order represents a historic and long-awaited step in the ongoing struggle to uphold the public trust, including Native Hawaiian rights protected under the trust, in the water resources of Nā Wai ʻEhā and throughout our islands.

For 17 years, farmers and community members have fought to restore stream flow to Nā Wai ‘Ehā, and to secure their rightful access to water necessary for the cultivation of lo‘i kalo and other crops in what was once regarded as the agricultural “breadbasket” of Maui’s largest population center. Thanks to their tireless efforts, a settlement agreement in 2014 has already provided for the restoration of mauka-to-makai flow in all four of these fabled streams, for the first time in over a century – thereby supporting the restoration of stream and coastal ecosystems and native species habitat, increasing aquifer recharge, and enabling lo‘i kalo to be farmed once again.

A subsequent 2019 stipulation between the Hui o Nā Wai ʻEhā, Mahi Pono and OHA further established a limit on the amount of water that would be diverted for Mahi Pono’s diversified agriculture efforts in Central Maui. Yesterday’s decision and order marks yet another crucial development in the push for pono water management in Nā Wai ‘Ehā, as the Water Commission has now come to its conclusions on water use permit applications intended to provide an appropriate level of priority for Native Hawaiian kalo farmers and kuleana owners in the allocation of water from these streams.

While OHA’s staff and legal counsel are continuing to review the 400-page decision and order, I am heartened to understand that Native Hawaiian traditional and customary kalo cultivation has, for the very first time, expressly received priority in the allocation of water through the water use permit application process, and that traditional and customary practitioners will be fully recognized as such, without the limitations proposed in a previous draft of this decision and order. On the other hand, it is perplexing that the closure of the last sugar plantation on Maui did not result in the restoration of more water to the streams, especially given the 2019 stipulation with Mahi Pono to reduce its water use from Nā Wai ‘Ehā to a fraction of the water sought by its predecessor, HC&S.

In the coming days, OHA will be working closely with the community and with our legal counsel to assess opportunities to address any remaining concerns, and to best ensure that the benefits of this landmark decision are fully realized.

In the meantime, I would like to express my deepest and heartfelt gratitude to the Hui o Nā Wai ‘Ehā, who have fought for nearly two decades to hold the state and corporate stream diverters accountable under our constitution, laws and the public trust. I am also supremely grateful for the many legal practitioners, law students, historians, cultural experts, hydrologists, Water Commission staff and hearings officers and Water Commission members past and present who have helped us reach yesterday’s historic decision.

Ola i ka wai!

Read the Final Nā Wai ʻEhā (NWE) Contested Case Executive Summary here. See the full NWE case here.

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