Isaac Moriwake, the longtime environmental attorney, reflects on landmark cases that now have potential to improve on the status quo. On June 20, the Hawaii Supreme Court ruled in the Hui o Na Wai ‘Eha suit over water diversions from Central Maui’s “Four Great Waters” (Waihee, Waiehu, Wailuku and Waikapu streams), that Hawaii public agencies must act to protect public and Native Hawaiian rights to common resources. How does this affect other water decisions? The court overturned a 2021 state Water Commission decision for failing to take the initiative to return more flows to the streams after the Hawaiian Commercial and Sugar Co.
plantation closed in 2016. As the ruling makes clear, Hawaii’s Constitution establishes a powerful public trust duty to protect water resources and Native Hawaiian water rights. This duty is affirmative — it compels action.
At the same time, the court upheld the commission’s authority to hold large diverters accountable. Here, for the first time, the commission imposed some restraints on water use permits, declining to sacrifice streams for growing golf course turf or subsidizing corporate farming. This decision sends a strong message for other upcoming cases.
Last year’s Maui wildfires exposed the impacts and injustices of more than a century of private water diversions. In West Maui, the decision speaks loud and clear: The commission’s duty is to restore Lahaina waters, not to reserve it for luxury landscaping and swimming pools. .