The debate over Maui’s water has been cast as the last sugar plantation struggling to stay afloat versus family farms seeking to sustain their lifestyle. And that’s definitely true, at one level.

But the case is about more than closing the book on the plantation era or restoring Native Hawaiian culture to its place atop society.

Rather than being the final chapter of one century-long battle, a decision by the Hawaii Commission on Water Resource Management, expected soon, will start to answer bigger questions for the islands’ future: Who ultimately controls this invaluable public resource, and how is that power used?

If history is any indicator, that’s what the struggle is really about. While Hawaiian Commercial and Sugar Co. and other area water users wait for the commission’s decision on Na Wai Eha, four of the largest streams in Central Maui, it might be informative to look at the arc of HC&S’s longtime Central Maui neighbor, Wailuku Sugar Company — now, tellingly, the Wailuku Water Company.

Over the past four decades, the company first transitioned from sugar to macadamia nuts, changing its name to Wailuku Agribusiness Company. It then transformed itself again, and now provides water to HC&S and many others in the area. What was once an agricultural operation that needed millions of gallons of water is now a company that converts its control of water directly into profits.

Some believe that this pattern — parlaying past power into future control — could be repeated by others, including HC&S.

“They talk a good game about farming and agriculture, but at the end of the day, it’s about controlling the water,” says EarthJustice attorney Isaac Moriwake.

He said a 2005 letter from the newly-formed Wailuku Water Company to shareholders stating 27.5 million gallons per day would be available to new customers was the “smoking gun” in that company’s plans. HC&S parent company Alexander and Baldwin has similarly shown its hand, he said, with plans for the Waiale Water Plant that will treat 9 million gallons each day and would clear the path to future urban development in the area.

“Exploring Our Future As An Energy Farm”

The company has considerable power and nostalgia on its side. It’s the final sugar plantation in Hawaii, the last of a dying breed. It employs 800 people, and the company says it will go out of business if even half of the 60 to 70 million gallons per day is restored to the Iao, Waihee, Waiehu and Waikapu streams, together known as Na Wai Eha, as was recommended by one commissioner last year. That makes the company a sympathetic figure.

But, asked how the public can be sure that the water will actually be used for sugar and not for a water company or for real estate development, HC&S points to its voluntary designation of more than 27,000 Maui acres as Important Agricultural Land as a demonstration of its commitment.

“We recognize that the commodity sugar business, even under the best of conditions, is a marginal one. We realize that in five to ten years it may not be viable,” General Manager Christopher Benjamin told the commission in October testimony. “That is why we have put a lot of time and money into developing our higher value specialty sugar business and in actively exploring our future as an energy farm — researching new crops and energy technologies.”

In addition to supplying the electricity for all of its own operating needs, HC&S produces about 7 percent of the electricity consumed by the rest of the island of Maui primarily through the burning of the remains of the sugar cane plant, after the sugar has been extracted. Benjamin has repeatedly said that the company envisions its future as an energy producer — if it can survive the current drought and commission actions.

“HC&S has been making good progress in overcoming many challenges and has many
reasons to be optimistic about our future, which will hopefully include biofuels,” Benjamin said in a Wednesday press release. “We will keep trying our hardest to keep HC&S viable to enable this transition.”

Moriwake isn’t buying it.

“It’s a land- and water-banking system, and sugar is the best way to do that because it’s the thirstiest crop around,” he said. “Maui is the wild, wild West. Plantations still own the roost — or they think they do. They’re having a hard time coming to grips with the fact that they have to comply with the law like everybody else.”

Water Law Rooted In Old Hawaii

The law in the case is hardly new — its principles date back to Kingdom of Hawaii law and beyond — but it has recently been reinterpreted through the Hawaii Supreme Court‘s seminal Waiahole decision in 2000. The ruling recognized the public trust doctrine, established a presumption that stream water remain in the streams, and put the burden of proof on those who divert the water to justify their need and the benefit to the community.

The issue is not going to be decided overnight. The initial settlement in the Na Wai Eha case was proposed in Spring 2009, and oral arguments were heard by the full commission in October of last year. The commission’s decision will likely only be the start of litigation. And such a decision would be subject to review by the commission again if HC&S changes its business plan or water usage if it transitions away from sugar.

While the company would need to obtain new water permits if it changes course, establishing the instream flow standards now, with a nostalgic view of sugar driving the conversation, might keep more water available for private development in the future.

A decision in a separate, but related, case handed down Tuesday evening will return more than 9 million gallons per day to six East Maui streams during the wet season. The move displayed some of the commission’s logic in interpreting the law that governs stream flows.

“What we came up with was a share-the-bounty, share-the-challenge approach,” Laura Thielen, chair of both the Hawaii Department of Land and Natural Resources and Water Commission, said Wednesday. Though she called the decision a successful compromise, both sides have lodged complaints about the decision in the days since it was handed down, and Thielen has acknowledged that “it’s a fallacy for any water manager to think that they’re going to make a permanent decision.”

Pointing to the history of Wailuku Water Company and others like it, Thielen said the commission adopted a staff recommendation that will require HC&S to produce annual reports that detail the end use of every gallon of diverted public water. She said the condition will increase transparency and allow the Maui community to keep tabs on its resources.

“(HC&S) said they have no intention of using this water for anything other than agriculture. … I’m going to take them at their word, but let’s say five to 10 years from now, things change, at least there would be accountability,” Thielen said. “My intention is to say to future commissioners, ‘This commission made a balance based on the facts in front of us, and if those facts change … you need to come back and revisit this and consciously decide if that instream flow standard needs to be amended one way or another.’

“People on Maui are going to remember that.”

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