Like others in East Maui, Kamalani Pahukoa’s family has farmed taro near Ke‘anae with water from the Koʻolau Forest Reserve for generations. The region’s taro fields were built over the course of centuries, the result of an irrigation system based on their Native Hawaiian ancestors’ deep understanding of the environment and how to use water to nourish the ecosystem from the mountains to the sea.
“Water is everything,” she said. “Our community understands that balance has to happen to flourish.”
That balance was lost, Pahukoa said, when plantations owned by Alexander & Baldwin were allowed to divert streams from East Maui to irrigate their sugar cane fields in Central Maui. Streams in East Maui started to run dry, devastating taro farmers, especially in the 1990s, she said.
This mechanism lowers and raises a gate to divert water on Ho‘olawa Stream in Huelo. East Maui water rights are a longtime point of contention. (Kevin Fujii/Civil Beat/2024)
The sugar plantations have all since shut down, and Mahi Pono, a diversified agriculture company owned by a Canadian pension fund, assumed full control this summer of East Maui Irrigation, the A&B subsidiary that for 140 years operated the ditch-and-tunnel water diversion system.
The future of East Maui water is now at a crossroads. Pahukoa, along with other taro farmers, cultural practitioners and environmental advocates, wants the state to put this resource back into the hands of the public while Mahi Pono wants the state to give it a long-term lease so it can divert up to 85 million gallons per day from the streams.
State land officials have recommended the Hawaiʻi Board of Land and Natural Resources hold a contested case hearing to decide the best course of action — either approve a 30-year water license by public auction or give the county control via governor’s executive order. The board plans to vote Friday on whether to proceed with the administrative hearing, following years of legal battles over the annual revocable permits it has granted in the interim.
Environmental and Native Hawaiian groups who have fought to regain public ownership of water for decades said they would rather skip the long, quasi-judicial contested case altogether and negotiate directly with Mahi Pono over potential mutually acceptable terms of an executive order granting the water rights to the county. They prefer giving long-term control of the region’s water to the East Maui Water Authority, which county voters created in 2022 for this type of purpose.
Mahealani and Ed Wendt live on Ed Wendt’s ancestral land in East Maui. (Cory Lum/Civil Beat/2019)
Mahealani Wendt, an East Maui resident who served as the executive director of the Native Hawaiian Legal Corporation for 32 years, said that Mahi Pono representatives have in recent years communicated respectfully with local residents, but she worried the company’s leadership would not hesitate to make business decisions even if that meant negatively affecting her community.
“We are not going to be dewatered unless God does it,” she said. “I’ll be damned if some corporation does it. I think people here are willing to put down their lives for this.”
East Maui Water Board Director Gina Young said during a community meeting in October that East Maui residents have repeatedly named regaining local control of the region’s water supply as one of their top priorities.
“My personal, biggest overall takeaway was the county really needs to step up and develop its own water resource management system,” she said of the public meetings.
County officials and East Maui residents have been negotiating with Mahi Pono representatives to sketch out a possible long-term solution that would let the county manage East Maui’s water system while granting certain assurances to Mahi Pono, according to Jonathan Likeke Scheuer, who chairs the water authority. A contested case hearing could halt those productive conversations, he said.
“The only reason for the Board of Land and Natural Resources to be considering this is if the intention of the administration is to go against the wishes of the people of Maui and issue a long-term water license to Mahi Pono,” he said.
In a letter to Gov. Josh Green’s office on Thursday, the environmental legal group Earthjustice argued that any decisions made by BLNR on Friday would be legally unsound because the governor failed to fulfill a legal responsibility to appoint at least one member with a background in conservation and natural resources.
“The board makes critical and lasting decisions about the protection of our ‘āina and public trust resources, decisions that must be informed by a board member with experience doing just that,” Earthjustice attorney Harley Broyles said in a release.
Green’s office confirmed it had received the letter and was in the process of reviewing it.
A Fraught History Of Private Water Ownership
East Maui’s water system includes roughly 75 miles of irrigation ditches owned by East Maui Irrigation that were built to divert water from local streams and deliver it to sugar plantations in Central Maui. The system was controlled by the commercial real-estate giant Alexander & Baldwin for over a century until the company granted full ownership of EMI to Mahi Pono earlier this year.
Mahi Pono previously acquired half ownership of EMI after the A&B-owned Hawaiian Commercial & Sugar Co. shut down in 2018 and the agricultural company purchased 41,000 acres of former plantation land. Some of that land is now used to grow fruits and vegetables. In addition to supplying water for Mahi Pono’s farms in Central Maui, EMI provides water to roughly 35,000 Upcountry residents.
The state land board has for decades awarded A&B and EMI one-year revocable permits to divert water from East Maui streams using infrastructure owned by EMI, and the state’s repeated issuance of these permits has sparked more than 20 years of litigation. For the last few years, Sierra Club of Hawaiʻi has petitioned for hearings that would require the board to hear detailed evidence from environmental groups and community members with a stake in how the water is distributed. The board has repeatedly denied these requests, prompting more legal challenges.
In September, the Hawaiʻi Supreme Court ruled that BLNR violated water advocates’ constitutional rights in 2021 when it renewed A&B’s revocable permit to divert water from East Maui streams. Sierra Club, the court ruled, was entitled to a contested case to more thoroughly examine the environmental and cultural impacts of its decision.
Last month, the First Circuit Court reversed the board’s decision to grant A&B a revocable permit in 2022. The court determined that BLNR had a responsibility to consider the downstream impacts of stream diversions and instructed the board to take steps to mitigate loss of water from the system, ensure flow standards are fully implemented before allowing more water to be taken from East Maui streams and protect access to water for traditional and cultural practices.
This fraught legal history looms large over the board’s potential next steps regarding the issuance of a longer-term license.
Mahi Pono is a diversified agriculture venture, growing fruit and vegetables on old sugarcane plantation land on Maui. (Nathan Eagle/Civil Beat/2023)
Native Hawaiian communities have for centuries viewed water as a sacred resource to be shared, and water is still protected as a public trust under Hawaiʻi law.
Hawaiʻi’s courts have continually reaffirmed that water is a public trust resource that can’t just be given away to corporate interests, according to David Frankel, an attorney who represented the Sierra Club. Relinquishing long-term control of this resource to a private company is a violation of that responsibility, he said.
Ed Wendt, who lives with his wife Mahealani Wendt on his family’s ancestral land in Wailuanui, said a private entity should never control a public trust resource.
“A public trust is for the people. It’s for the public to have water for their needs,” he said.
Representatives for Mahi Pono did not respond to requests for comment.
Lucienne de Naie, who steers the Sierra Club’s Maui chapter, said she understood how securing a long-term lease would give the farming company a certain assurance that it will have the water it needs to invest in its future. Hawai‘i has been pushing to grow more of its own food locally for years.
“Any farmer would want to know that they’re going to have a water supply for the long term,” she said. “However, it’s irresponsible … to pledge public resources for 30 years when you don’t know how much is going to be available.”
She added that some streams that were previously diverted have never been restored, and some of them remain bone-dry.
East Maui is in the midst of a historic drought, and officials in recent months have discovered that the flows of key streams have been reduced to their lowest levels on record. Given the uncertainty surrounding climate change and how it will affect rainfall in East Maui, De Naie said, the state land board would be unwise to make a 30-year decision about how the region’s water can be used.
“It’s a generation,” she said. “These decisions are being made in Honolulu. They need to be made on Maui, and that’s why we wanted a community water authority that’s based here on Maui.”
The water authority doesn’t want to shut down farming in Central Maui, she added, it just wants to see that water is fairly distributed.
An Uncertain Future
In 2018, the state Commission on Water Resource Management ordered an end to the water diversions that caused East Maui streams to run dry during the 1990s, but so much damage had already been done, Pahukoa said. Many of the region’s farmers had already been forced to leave.
“The majority of the farms have been dormant ever since,” she said. “The community never fully recovered.”
The view from Na Moku’s community center, that overlooks kalo fields in the East Maui village of Keʻanae.
Ed Wendt still mourns the loss of the East Maui where he grew up. His family’s roots in Wailuanui can be traced back at least six generations, and they were farming taro long before settlers established the massive sugar plantations that eventually starved local streams.
“What does the community mean to me? It means the whole world to me,” he said. “But once the sugar plantations came, things changed. The dewatering of the streams and rivers, the state allowing them to freely take as much as they want — it came to a point where they just took it all.”
Neither the state nor Mahi Pono has done enough to earn the trust of many residents, Pahukoa said, so there’s a fear that the decisions made by faraway corporate executives could once again allow some of the region’s water sources to dry up.
“It would mean the loss of our identity,” she said.
Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation. Civil Beat’s coverage of environmental issues on Maui is supported by grants from the Center for Disaster Philanthropy and the Hawai‘i Wildfires Recovery Fund and the Doris Duke Foundation. Civil Beat’s coverage of climate change and the environment is supported by The Healy Foundation, the Marisla Fund of the Hawai‘i Community Foundation and the Frost Family Foundation.
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