HAWAIʻI’S WATER CODE
It seems that every day, our islands’ future appears more and more dire.
Rainfall has decreased 15% over the past 20 years. Climate change models show that the cloud band embracing our mountain slopes – filling our aquifers and streams through rain and fog drip – will continue to shrink. Rising seas threaten our basal freshwater lenses. And the continued push for development, particularly of high-end properties and “gentleman’s farms” where landscaping and swimming pools are the dominant crops, demonstrates how those with money and power continue to vie for the private, profit-driven use of our limited water resources.
In these times, the need to restore and uphold the traditional Hawaiian understanding of water as a sacred, public trust – to be reserved and managed for the public’s benefit, and not monopolized for private, corporate gain – seems greater now than ever before.
Fortunately, the means to achieve this may be found in laws already on the books, which after 30 years have yet to be fully implemented: the State Water Code.
Birth of the Code: Reaffirming the Public Trust in Water
In 1987, the legislature fulfilled a decade-old constitutional mandate reaffirming the public trust in water, by passing a set of laws seeking to “protect, control and regulate the use of Hawai‘i’s water for the benefit of its people.”
This new Water Code was a Big Deal. Where a plantation oligarchy had for generations exercised de facto control over a major proportion our water supply, diverting streams and draining aquifers throughout the islands for industrial sugar cultivation, the new Code suddenly provided, in written law, mechanisms to conserve, protect, and ensure that our public trust water – all water – is first and foremost used for the public good, including through the protection of watersheds, streams, and coastal resources as well as of water-related Native Hawaiian rights and practices.
Water Wars: The Plantations Fight Back
Predictably, the Code has since faced stiff resistance, with plantations and their successors-in-interest fighting tooth-and-nail against the enforcement of its provisions.
Almost immediately, the Code’s required “instream flow standards” setting stream flows “necessary to protect the public interest” were quietly established as the “status quo” of stream flow (or lack thereof) for every stream in the state – regardless of the hundreds of diversions that continued to drain our islands’ streams dry.
With limited resources and staffing provided to the Water Commission, these instream flow standards sat dormant and unchanged for years. Farmers’ efforts to finally update the “interim” instream flow standards and restore stream flow in Waiāhole were then fought vigorously by diverters, as were later efforts by farming communities and cultural practitioners in Central and East Maui.
Likewise, farmers and practitioners asserting their priority rights to water in the very few “water management areas” designated via the Code similarly faced years of resistance and largely unfounded legal challenges, by well-heeled diverters and large-scale corporate water consumers.
Old news articles further hint at the apparent, deeper political intrigue against the Code: the deputy attorney general who was allegedly fired, for speaking to the native rights protected under the Code; the suspension and eventual resignation of a Division of Aquatic Resources administrator, after his public report on East Maui’s stream habitat needs.
These decades of corporate and political resistance demonstrate the danger the Code has posed to those with power and influence, and the lengths they have gone through to prevent its public trust mechanisms from being fully implemented.
Harnessing the Power of the Code
Despite the decades of pushback, and in light of today’s unprecedented era of climate change, it is now our responsibility to not only protect the Code, but to find ways to further harness the untapped potential of its public trust vision.
The time is ripe. New Water Commission staff have recently taken the initiative to update interim instream flow standards in West Maui, the first time the state has done so without legal intervention. Government agencies such as the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands have stepped in to sponsor comprehensive hydrologic studies, as well as water law trainings for communities as well as government officials. And the tireless, decades-long efforts by farmers, environmentalists, cultural practitioners and others to apply and uphold the Water Code have resulted in a solid foundation of supreme court precedent, leaving little wiggle room for corporate attorneys working to perpetuate their clients’ generations-long stranglehold on our streams and aquifers.
With these promising developments, public vigilance, engagement, and advocacy remain the critical pieces needed to wield the Code as the public trust game-changer it was always meant to be. Appropriate Water Commission nominations, sufficient funding by the legislature and the hiring of dedicated, well-informed staff are all key to finally and meaningfully implementing Code’s most powerful public trust mechanisms. By stepping up, together, we can generate the political will to make these things happen, and take back the waters that belong to us all.
To learn more about the Code and water law in Hawai‘i, visit bit.ly/oha-wai
Hawaiian place names…
often reflected an intimate familiarity with the unique resources and natural characteristics of the region, community or site they were attached to, and were often further informed by stories, historical events and spiritual qualities that reinforced the deep connection between people and the lands that fed them, the lands that they loved.
Waikīkī. Wai‘alae. Waimānalo. Waiāhole. Waipahū. Waipi‘o. Waimalu. Wai‘anae.
If you live in Hawai‘i, there is a fairly good chance that your home is named after the waters, or former waters, of your place.
Wailuā. Waimea. Waipouli. Wai‘oli. Wailuku. Waiehu. Waikapū. Waiohonu.
And in any case, it shouldn’t take much effort to find a place nearby, whether an ahupua‘a, an ‘ili or even a specific site or natural feature, in which water, wai, is a central part of its traditional name.
Waikolu. Kawaikapu. Waiohuli. Waialua. Manawai. Wai‘ōhinu. Waiākea. Waipi‘o. Wailau. Waikōloa. Kawaihae.
Literally translated, these names could be as poetic as they were descriptive:
Two waters. Three waters. Spouting water. Bursting water. Red water. Dark water. Water of wrath. Water of destruction. Water of the fat mullet. Water of the mature āhole fish. Water of the milkfish. Sweet water. Bitter water. The sacred water. The water of Kāne.
That so many places, beloved by those that lived on and off of these lands, were described in terms of their waters is not likely a coincidence. The traditional Hawaiian understanding of water as a sacred and life-giving resource permeates legends and chants, informed the earliest laws or kānāwai of Hawaiian society and enabled the growth of a human population nearly commensurate with that of Hawai‘i today, which both sustained itself and ensured levels of widespread natural abundance not seen since the earliest days of Western contact. The salience of wai and its qualities in the naming of lands is likely a further reflection of this foundational traditional understanding. While many traditional place names have been lost to time, those that survive today – by which we may still call our own homes, whether Native Hawaiian or other kama‘āina – and that carry the descriptions of wai remind us of this ancient but ever more relevant understanding.