Instream Flow Standards | Images of Old Hawaiʻi

The State Water Code provides for the Commission on Water Resource Management (Water Commission) to establish and administer a statewide instream use protection program.

Duties under this program include:
• Establishing instream flow standards on a stream-by-stream basis whenever necessary to protect the public interest in waters of the State
• Establishing interim instream flow standards
• Protecting stream channels from alteration whenever practicable to provide for fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses
• Establishing an instream flow program to protect, enhance and reestablish, where practicable, beneficial instream uses of water

Instream Flow Standard (IFS) is “a quantity or flow of water or depth of water which is required to be present at a specific location in a stream system at certain specified times of the year to protect fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses.”

The technical language of the law is complicated; I simplify this to say that the instream flow standard allows a stream to be a stream.

Unfortunately, for the most part, Hawai‘i does not have permanent IFS; our streams are monitored under Interim Instream Flow Standards (IIFS.)

Essentially this means that, years ago, the Water Commission allowed existing diversions to continue and whatever remained in the stream was the IIFS.

Lack of Instream Flow Standards has caused a number of litigations, Waiāhole being the most prominent. The Waiāhole water case and others have taught us that we need to do things differently.

The Hawai‘i Supreme Court emphasized in the Waiāhole case that instream flow standards serve as the primary mechanism by which the Water Commission is to discharge its duty to protect and promote the entire range of public trust purposes dependent upon instream flows.

Under the Constitution, the State has an obligation to protect, control and regulate the use of Hawaii’s water resources for the benefit of its people. In the Waiāhole case, the Supreme Court reaffirmed that the public trust doctrine applies to all water resources of the State.

The Court also identified three purposes or uses under the public trust doctrine: Maintenance of waters in their natural state (letting a steam be a stream;) Domestic water use (drinking water for you and me;) and Native Hawaiian traditional and customary rights.

Rather than react to the next litigation or crisis, we need to take proactive, comprehensive and collaborative approaches in developing instream flow standards for Hawai‘i’s stream systems.

While at DLNR, I Chaired the State Commission on Water Resource Management (the Water Commission.) We worked on several programs to develop a better understanding of Hawai‘i’s 376 perennial streams.

These programs included: Statewide Watershed Coding System – providing a framework for inventorying of surface water resource information; Stream Diversion Database – providing information for all diversions statewide …

Surface Water Information Management System – providing the informational foundation for instream flow standards; and Hawaii Stream Assessment through DLNR’s division on Aquatic Resources – the stream coding system.

The goal is to establish permanent instream flow standards for all streams across the state that are consistent and, to the extent practicable, based on scientific or measurable data, all in a manner that is understandable and transparent. It is anticipated that this methodology will avoid future, lengthy litigation, as experienced in the past.

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Stream-CWRM

Maui is the second largest of the Hawaiian Islands, and covers about 730 square miles. Maui consists of two separate volcanoes with a combining isthmus between the two.

The Mauna Kahālāwai (West Maui Mountain) is probably the older of the two; Haleakala (East Maui) was last active about 1790, whereas activity on West Maui is wholly pre-historic.

Nā Wai ʻEhā (“The Four Great Waters”) – Waiheʻe River, Waiehu Stream, Wailuku (ʻĪao) Stream and Waikapū Stream are in central Maui.

The headwaters of Waine’e and ‘Īao extend to or near the summit of the Mauna Kahālāwai at Pu‘u Kukui and are among the largest streams, in terms of stream flow, on Maui.

The headwaters of N & S Waiehu Streams are cut off from the summit area by the valleys of Waine’e River to the north and ‘Īao Stream to the south, they later merge to form Waiehu Stream. Waikapū Stream is the only Nā Wai ‘Ehā stream that drains to the southern coast of Maui.

The abundance of water in Nā Wai ʻEhā enabled extensive loʻi kalo (wetland kalo) complexes, including varieties favored for poi-making such as “throat-moistening lehua poi.” (CWRM)

Nā Wai ʻEhā once “comprised the largest continuous area of wetland taro cultivation in the islands.” Its “complex agricultural system of wetland kalo cultivation,” together with the abundant protein sources in the streams and nearshore waters, supported one of the largest populations on Maui.

The fertile kalo lands, complex system of irrigation ʻauwai (ditches) and abundant fresh water from Nā Wai ʻEhā sustained Hawaiian culture for 1,000-years.

In addition to extensive agricultural production, other practices thrived in Nā Wai ʻEhā, including the gathering of upland resources, such as thatch and ti, and protein sources from the streams, including ʻoʻopu (goby fish,) ʻōpae (shrimp) and hihiwai (snail.)

The waters of Nā Wai ʻEhā were renowned for the practice of hiding the piko, or the umbilical cord of newborn babies. “(T)he spring ʻEleile contained an underwater cave where the people of the area would hide the piko of their babies after birth.” This practice affirms the individual’s connection to the land.

The practice of hiʻuwai, also known as kapu kai, often occurred here around the time of makahiki, when individuals “would go into the rivers or into the ocean in order to do a cleansing for the new year”.

This type of cleansing, which required immersion in the water, was also conducted “before you start or end certain ceremonies”. For ceremonies dedicated to Kāne, “having a hiʻuwai in a stream magnifies the mana”.

Given the makeup of the Nā Wai ʻEhā, Waiheʻe River and ‘Īao historically would have flowed continuously to the coast; Waiehu Stream would have flowed continuously to the coast at least 95 percent of the time; and Waikapū Stream would have flowed continuously to the coast less than half of the time. (USGS)

But the streams were diverted, to quench the thirst of the thirsty sugar plantations.

By 1866, a letter published in the Hawaiian language newspaper Nūpepa Kūʻokoʻa lamented “the current condition of once cultivated taro patches being dried up by the foreigners, where they are now planting sugar cane”.

These diversions and ditch systems historically supplied two sugar plantations: Wailuku Sugar and Hawaiian Commercial & Sugar Company (HC&S,) which belonged to the plantation-era “Big Five” companies C. Brewer and Alexander & Baldwin, respectively.

Wailuku Sugar was organized in 1862 by James Robinson, Thomas Cummins, J Fuller and agent C Brewer. In 1878, through his friendship with King Kalākaua, Claus Spreckels secured a lease of 40,000-acres of land on Maui and by 1882 he founded the Hawaiian Commercial Company (later known as Hawaiian Commercial & Sugar Company – HC&S.)

This quickly became the largest and best-equipped sugar plantation in the islands (in 1898, Spreckels lost control of HC&S and Alexander & Baldwin took over as agents at that time.)

Water wars have been waged way back.

Back in 1882, Wailuku Sugar and Spreckels fought over portions of the ditch system and purported rights to the water in the streams.

Lately, complaints were filed by downstream users arguing public trust, traditional and cultural practices (including kalo farming.) In part, the diversions and ditches are capable of diverting all of the dry-weather flow available at the intakes – and often times, downstream conditions resulted in dry streambeds.

More recently (March 13, 2008,) the State Commission on Water Resource Management designated Nā Wai ʻEhā a surface water management.

In addition, on August 15, 2012, the Hawaiʻi Supreme Court vacated a Water Commission decision and that included instream flow standards.

Instream Flow Standard is “a quantity or flow of water or depth of water which is required to be present at a specific location in a stream system at certain specified times of the year to protect fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses.”

The technical language of the law is complicated; I simplify this to say that the instream flow standard allows a stream to be a stream. (Lots of information here is from associated court papers and descriptions.)

The image shows a map of Nā Wai ʻEhā (CWRM.) I added a couple of other images in a folder of like name in the Photos section on my Facebook and Google+ pages.

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