HA'IKU, Maui — A "stream first" policy approved yesterday by a state panel grants taro farmers and native ecosystems in East Maui a priority share of stream water before it is diverted for agricultural and domestic use.

The decision by the state Commission on Water Resource Management establishes interim instream flow standards for eight streams but will have "monumental effects across the state on how we deal with streams and water," said chairwoman Laura H. Thielen.

Thielen said the new "stream first" policy "is an important change in thinking" that will be reflected in future petitions involving stream resources. She noted that although state Water Code priorities include protection of native stream life, such as hihiwai (a type of snail), 'opae (shrimp) and 'o'opu (freshwater goby), and of traditional and customary uses, "that's not the reality" because much of the diversion infrastructure was built long before regulations.

The flow standards approved yesterday will require East Maui Irrigation Co. to remove or alter some of the 74 miles of tunnels, pipes, ditches and flumes that can collect and transport 450 million gallons a day from the area's lush rain forests.

EMI, a subsidiary of Alexander & Baldwin Inc., has been diverting water from East Maui streams for more than 100 years for sugar cane fields on central Maui's plains. More recently, diverted stream water has been sent to Upcountry Maui residents for domestic use and to farmers in the Kula Agricultural Park.

As simply put by Thielen, the new policy means "the minimum amount of water needs to stay in the stream first. Anything above that amount would be allowed to be diverted by EMI."

"This is a substantial change in how the water is being transported now. We recognize the numbers in the recommendations may not be the numbers the taro farmers wanted, but on the other hand, up until now you've been taking water after the diversion, and under this transition you will get it first," she told the crowd at the Ha'iku Community Center.

Wanda Vierra, daughter of Beatrice Kekahuna, a petitioner in the case, called the commission approval of the new flow standards "a chicken skin moment."

She said her family has been farming at Honopou for many generations and is struggling to eke out a subsistence living.

Kekahuna, 76, said the family has been able to cultivate only seven of their 35 taro lo'i because of inadequate stream flows. Five other patches are ready for planting.

She said there isn't enough taro to sell and that what's there is rotted or stunted.

"Every year we keep clearing and waiting for the water," Kekahuna said. "Our plants die. We lose our plants and we lose our income and our food."

'A PRIORITY'

Officials of Hawaiian Commercial & Sugar Co., another A&B subsidiary, urged the commission to balance the needs of traditional stream users with the economic benefits provided by the sugar plantation, including jobs for 800 workers, dozens of whom attended the commission meeting in red T-shirts.

Attorney Alan Murakami of the Native Hawaiian Legal Corp. said there is a 160-year legal history in Hawai'i of protecting the "traditional and customary" rights of Native Hawaiians, including a right to adequate water for kuleana activities.

He said protecting natural resources and water rights "is a priority irrespective of the economic impact."

"It is not part of a balancing act, it comes first," he told commissioners.

The Native Hawaiian Legal Corp., on behalf of Kekahuna, Marjorie Wallett and Na Moku Aupuni O Koolau Hui, filed petitions with the Commission on Water Resource Management in 2001 to amend interim stream flow standards, established in 1988, for 27 East Maui streams.

Those status quo standards were based on the amount of water flowing in streams on the day the standards took effect, without regard for ecological, cultural and economic concerns or the competing needs of water users.

The purpose of the "status quo" standards was to prevent further damage to streams until scientifically based flow standards were developed, but they also allowed existing ditches and other diversion infrastructure to remain in place.

The eight East Maui streams affected by yesterday's decision are: Honopou; Hanehoi and Puolua; Pi'ina'au; Palauhulu; Waiokamilo; Kualani; Waikani; and East and West Wailuanui.

Commission staff continue working on recommendations for instream flow standards for the remaining 19 of the 27 petitioned streams.

The policy also promotes "adaptive management" of the resources between the involved parties that will permit modifications as conditions change or new information is collected.

Stephen Holaday, president of agribusiness at A&B, said the company supports the commission's action and is "committed to cooperating closely with the state and the taro growers to release water as soon as possible to these streams. "

However, since HC&S relies on an integrated diversion system, the company "remains concerned about a timely decision on the remaining 19 petitions," he said.

"Pending a decision on all 27 petitioned streams, HC&S is in a regulatory state of suspension, making it very difficult and very risky to plan for its future," Holaday said in a statement.

"All HC&S wants to know is where it stands - how much water can it depend on in the future - so that we can figure out what HC&S would need to look like with that lessened supply."

In comments after the meeting, Murakami called the commission's action "a ground-breaking precedent."

Unlike the Waiahole Ditch contested case that involved distribution of stream water after the shutdown of Oahu Sugar Co., the East Maui instream flow standards were designated while the sugar plantation operating the diversion system is in business.

He said the amended flow standards are "a partial solution" to the issue of Native Hawaiian water rights in East Maui.

In establishing the flow standards, Murakami said the commission failed to analyze how much water taro farmers need to grow their crops.

WATER RIGHTS

Lyn Scott, daughter of petitioner Wallett, said taro farmers want 100 percent of the stream flow restored.

"I would like more water but this is a starting point and we can go on from there," she said.

"The land deserves the water, the water goes with the land and we go with the land."

Native Hawaiians in East Maui have been fighting for water rights at least since 1881, when they petitioned commissioners of crown lands not to grant water rights to sugar baron Claus Spreckels. And since the status quo standards were set in 1988, they have been seeking restoration of stream flows.

Thielen advised A&B and taro farmers to work together on implementing the new standards. "If the two parties continue to fight and expect the state to come in and resolve the dispute, it's not going to work," she said.

Murakami said the taro farmers are willing to put aside their grievances as long as they get their water sooner rather than later.

"We will move forward, and if A&B responds in good faith, we're ready to work together," he said.