Multiple battles are brewing over water rights on Maui. An attorney is contesting changes to stream flows in West Maui, while a lawsuit is being heard by the Hawaii State Supreme Court over a request to change stream flows in East Maui. Both issues emerged in the wake of the wildfires under the pretense that the waters are needed to fight fires.

The fight over Maui’s water stems back to the late 1800s when sugar plantations diverted streams. After Lahaina’s sugar cane plantation closed in 1999, land developers, including West Maui Land Company, took over the ditch irrigation system. Taro farmers who live on kuleana lands, which are ancestral, went to court in the 1990s and asked that Kauaula Stream’s water flow be restored. The stream sits in the mountains above Lahaina. In 2018, the State Commission on Water Resource Management changed the amount of water West Maui Land Company could take from Kauaula Stream. But after that decision, the stream flow continued to be contested.

The same day the fire destroyed Lahaina, West Maui Land Co. executive Glenn Tremble wrote to the CRMW Deputy Kaleo Manuel asking to divert water from streams in order to fill the company’s reservoirs with water to fight the fire. Manuel told Tremble to first ask a farmer downstream whether the water reduction would impact his loʻi (water taro patch). After about five hours, CRMW granted Tremble’s request, but by then, the fires had burned through Lahaina. Spectrum News Hawaii reached out to Tremble multiple times for comment, but he did not respond before publication.

Hawaiians and environmental activists have said the water diversion would not have helped fight the fire. Maui resident Tiare Lawrence said in a livestream on Instagram that none of the reservoirs are connected to fire hydrants and the fire department couldn’t have picked up water from West Maui Land Company’s reservoirs since helicopters weren’t flying due to strong winds.

On Aug. 10, Tremble wrote again to the Commission. This time, he made three requests. He asked that CWRM grant ongoing authorization to fill the reservoirs when a fire has been reported in Olowalu, Launiupoko, and Lahaina. His second request was that CWRM suspend the stream flow minimums until the emergency period has ended. Last, he asked CWRM to start proceedings to amend instream flow standards to provide more water for fire suppression. 

Department of Land and Natural Resources Chair Dawn Chang, who is also the chair of CRMW, replied the same day, granting all three of Tremble’s requests. She cited Hawaii Gov. Josh Green's emergency proclamation that suspended the State Water Code and her authority as chair of the CWRM. 

On Monday, attorney Lance Collins, who represents kuleana families in West Maui, wrote a letter to Chang, asserting that she does not have the power to unilaterally grant West Maui Land Company's requests — even with the suspension of the State Water Code. 

“There's nothing anywhere that gives her the authority to do that. The Commission has the authority to do that, and only the Commission,” said Collins to Spectrum News Hawaii. 

West Maui Land Company has been asking for the last six years for CRWM to suspend the instream flow standards, said Collins. He said this was just their latest attempt to divert the water. 

Collins is waiting to receive a response from Chang, but is prepared to go to court on behalf of West Maui kuleana families over the changes in the water flow standards. 

“If she doesn't have a response, or it's not satisfactory, then we're probably going to be looking for judicial review,” said Collins. 

DLNR declined to comment when asked about the matter by Spectrum News Hawaii. 

Collins also filed a lawsuit on Monday arguing that the removal of former Water Deputy Kaleo Manuel from his position was illegal. A week after the Maui wildfires, Chang said the deputy had been transferred to another DLNR division. While it’s not clear why he was removed from his position, it followed multiple media reports about him waiting to approve Tremble’s request to divert the water the day the fire destroyed Lahaina. Manuel, who has a bachelor’s in Hawaiian Studies, brings indigenous knowledge to his work and his supporters have rallied behind him. 

Meanwhile, in East Maui, another battle over stream diversions is also ongoing. Starting in the late 1800s, sugar plantations built an irrigation ditch system, which diverted water from dozens of streams. In 2000, the Board of Land and Natural Resources granted East Maui Irrigation and Alexander and Baldwin short-term permits to continue to divert water. Over the last two decades, Hawaiians and environmental groups have fought in court to restore the water to the streams. In 2018, CWRM mandated water be returned to some streams. Since then, the Sierra Club has continued to fight for water to be returned to more of the streams.  

The day after the wildfires started on Maui, the Board of Land and Natural Resources and Alexander and Baldwin filed a petition in Hawaii Supreme Court, saying there was “not enough permitted water to battle the wildfires” in Upcountry Maui. The petition asked to overturn a June court decision that limited Alexander and Baldwin’s stream diversion from 40 million gallons to 31.5 million gallons. However, the Maui County corporation counsel said the water allocated for stream diversion “has been sufficient to combat the fires located Upcountry.”

On Wednesday, the Hawaii Supreme Court heard arguments on the Board of Land and Natural Resources and Alexander and Baldwin’s request. During the oral arguments, Justice Todd Eddins and Sabrina McKenna both grilled Board of Land and Natural Resources attorney Miranda Steed on the declaration that there was not enough water to fight the fires. She replied that Maui County was not the only agency fighting the fire, noting the state Division of Forestry and Wildlife was also involved. In response, Eddins continued to ask for “factual support” that more water was needed. Wayne Tanaka, the head of the Sierra Club of Hawaii, told Spectrum News Hawaii he was not sure when the Hawaii Supreme Court would rule on the case.   

Michelle Broder Van Dyke covers the Hawaiian Islands for Spectrum News Hawaii. Email her at michelle.brodervandyke@charter.com.