Board Talk: Wai‘oli Taro Farming Hui Wins Permit, Perpetual Easement for Ancient ‘Auwai

posted in: April 2020, Board Talk, Water | 0

Nearly a year ago, the Board of Land and Natural Resources granted a 55-year easement and a right-of-entry permit to allow a non-profit group of Hanalei taro farmers to repair and maintain the ancient, pre-contact Hawaiian irrigation system that they rely on and which was destroyed by devastating floods in April 2018.

The farmers, who formed the Wai‘oli Valley Taro Hui, Inc., produce the vast majority of the state’s locally grown taro, and many of them come from families who’ve tended the fields there for generations.

Ian Hirokawa of the Department of Land and Natural Resources’ Land Division explained at the board’s May 24, 2019, meeting that Kaua‘i County had been working with the farmers to remediate the damage, which includes a diversion along Wai‘oli Stream that lies on state land.

The county was going to assist with the initial repair, but since the system is largely on state land, the Land Division worked with the farmers on an easement to give them the ability to maintain the system, Hirokawa said.

With regard to the taro farmers’ use of water from that system, Hirokawa did not propose issuing them a revocable permit or water license at that time. He said the state would work with the farmers on eventually issuing some kind of disposition for the water, but wanted to first provide an opportunity to repair the system, a portion of which — the manowai, or intake — is designed to break apart after heavy rains.

While the farmers would have preferred a perpetual easement, rather than a term easement, the board could not grant one that day because it had not been noticed in the agenda to allow for the change. But on February 28, Hirokawa brought a request to the Land Board to amend its May action to make the easement perpetual, enlarge the easement boundaries to reflect what had been surveyed, and issue a revocable permit for the group’s water use.

Hirokawa asked that rent for the permit be free, given its unique nature, noting that the hui is a non-profit engaging in a traditional and customary practice. Traditional and customary Hawaiian practices are protected by the state constitution.

Land Board member Chris Yuen suggested that the permit probably should have been granted at the same time the easement was. Hirokawa explained that, at the time, the best path forward was unclear, given proposals before the Legislature that could possibly have had an impact.

Yuen asked whether the hui’s permit would be lumped in with all of the state’s other water use permits when it comes time for their renewal.

Hirokawa said that was one option. He noted that last year, a bill before the Legislature included a permitting exemption with the several other water use permits that the board has been renewing every year. Those other permits are wrapped up in a controversy, stemming from a 2016 circuit court decision regarding the legality of the Land Board’s annual renewal of revocable permits (RP) for water.

“People, the public, has issues with the other RPs [for] KIUC [Kaua‘i Island Utility Cooperative] and East Maui Irrigation. This might, if you bundle it with that, it might delay [the taro farmers] from doing anything,” Oi said.

DLNR director and Land Board chair Suzanne Case said the farmers will need to get a water lease eventually. “What we’re trying to do here is fit an old system into a new legal system,” she said.

“Based on measurements conducted by the staff of the Commission on Water Resource Management, the amount of water diverted for taro irrigation is approximately 10.07 million gallons per day (mgd), against a flow of Wai‘oli Stream measured at 21.14 mgd,” Hirokawa’s report to the board states.

Hui president Reid Yoshida, whose family has lived in Hanalei for 125 years, explained that the farmers’ use of the water is non-consumptive and that any seepage from the system works its way into the water table.

After the 2018 floods, the huge boulders that had filled the manowai made it almost unrecognizable, he said.

“Our entire water supply was cut off [and] we actually did something that the members typically don’t ever do. We actually asked for help. We were fortunate the community got together, there are people that came from all over the island. Everyone was hand-digging debris out of the ‘auwai trying to restart the flow. We were able to get the flow back to the farms, but it’s minimal. It’s barely enough to keep the farms going,” he said.

The farmers also lost a lot of equipment to the floods. Yoshida said two of his tractors and his lawn mowers were under water, and his chain saws were washed away.

With all of the silt that was deposited in the taro fields by the floods, Yoshida said his production dropped by 40 percent. The combined hardships forced him to return to his previous job as an engineer, but one day, he hopes to return to farming full time. “I’m not going to give up my farm. I’m never gonna give up my farm,” he said.

To make sure that farming is even possible in the future, he said that the hui needs to be able to respond to weather events. “It doesn’t have to be a major storm. It could just be a rainy week. The river will change its course, so we’re constantly going up there just to try to chase it, just to make sure we have a little bit coming through our fields.

“For the Wai‘oli Valley Taro Hui, all the farmers go back so many generations and we all know each other. Last year we finally formally organized … so we could protect and restore the resources Wai‘oli provides for us,” he said.

“If something were to happen and we cannot go back and repair that system, I’m afraid that we if we have something even half as bad as what happened in April [2018], that water system could be damaged to the point where taro farming in Wai‘oli might stop. There’s certain areas, if we get any more damages, I don’t think we could recover. Maybe it might be where taro farming stops, and then it’s couple years to fix it and everyone has to start all over,” he continued.

Yoshida said returning to farming would be carrying on the legacy his grandfather started for his family 100 years ago. “I’m hoping there’s a next generation that’s going to take it over, but without the water, that next generation won’t have the opportunity,” he said.

Yuen said he hoped the paperwork in the future is not too horribly difficult. “It tends to be whenever the word ‘water’ pops up,” he said.

Kapua Sproat, director of Ka Huli Ao Center for Excellence in Native Hawaiian Law and the Environmental Law Clinic at the University of Hawai‘i, said that the farmers have done everything right. Some of her students have aided the hui in navigating the government approval processes to repair the system. Once all necessary approvals are in place, restoration can be made in earnest, she said.

“Might there be a need for other state land because the river changes?” Yuen asked.

Sproat replied that was possible, but what’s in the amended easement is sufficient for now.

She added that the hui is also looking to help steward the upper watershed. She said that since the board first granted the easement, there’s been a significant amount of damage, in part, due to invasive albizia trees. “Now, when there’s a big wind, it’s horrible up there,” she said.

Land Board member Sam Gon said, “It would be an amazing thing to partner with some efforts that try to remove non-native trees from that area and replant native species that are more resilient and more adaptive to the upper watershed. And that may be cooperative programs with DOFAW [the state Division of Forestry and Wildlife] or other organizations.”

“That’s precisely why I think the hui decided to pursue a non-profit … because we realized what a significant kuleana this is and we are already pursuing partnerships with Malama Kaua‘i and others. We’d be happy to work with DOFAW or anyone else,” she said.

The board unanimously approved the easement amendments and the revocable permit.

Teresa Dawson

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