Water is a Public Trust

April 6, 2013
By MICHAEL HOWDEN , for The Maui News

As reported in The Maui News (March 27), the County Council's Water Resources Committee held an evening meeting to listen to public testimony on WR-19, an administration bill giving the water director the power to "impose higher rates during water shortages and to penalize those who violate drought directives."

Though the water director already has the power to severely penalize those people who don't follow actual drought restrictions - through removing their water meters - the intention of the proposed bill does little to relieve shortfalls in our county system. As pointed out by several of the testifiers, folks with enough money will find the heightened rates to be no real obstacle to using more water, even in times of drought.

In addition, there is no exemption of any sort for local agriculture. As established by the Maui County Board of Water Supply under Chairman and former Mayor Elmer F. Cravalho, no restrictions on reasonable use of water were to be imposed on agricultural use. Given the small profit margins of many farmers and the need to plan well in advance, as well as the vagaries of weather patterns, farmers need to know that water will be available and that it will be affordable.

The proposed bill does not address these needs.

What is most telling to me is the continuing inability of the county to address issues of water resource and supply. Reportedly, the water director has told staff members that he considers the memorandum of understanding between the county and Hawaiian Commercial & Sugar/East Maui Irrigation not to have legal standing. The memorandum, created during the Cravalho administration, guarantees to the county the right to withdraw from 12 million to 15 million gallons per day at the Kamaole Weir in Haliimaile.

Given that the county presently takes less than 9 mgd from the weir, there is considerable additional water available from the EMI ditch system, which averages more than 200 mgd. These waters, taken from East Maui, are public trust waters and, as such, are meant to be held in trust for all residents of these islands, not to be the personal possession or otherwise under the nearly complete control of a corporate entity.

In the most recent mayoral election, Alan Arakawa said repeatedly that he would use the power of eminent domain to take control of both the EMI system in East Maui and also the Wailuku Water Co., as these companies relied upon public trust waters, which are meant to be in the public domain. That the taking of these waters by private corporate entities is illegal and adverse to the public interest has been affirmed in numerous decisions by the Hawaii Supreme Court.

When you dewater streams, the fauna and flora of the stream are negatively impacted, as is the health of nearshore waters, causing a public health hazard. Witness, for example, the dewatering of the Makapipi and Hanawi streams and its effect on the entire Nahiku ahupua'a. Hanawi was once considered to be one of the most precious of all streams in the Hana district.

Water in Hawaii is not a commodity but a resource to which all are entitled. Indeed, a public trust resource held in trust by the State of Hawaii for the beneficial uses of all its citizens. That these resources have been taken by private entities seems criminal. That the state and the county remain voiceless before these issues is a matter of great concern.

* Michael Howden is a former two-term member of the Maui County Board of Water Supply.