By Ashley Obrey, Senior Staff Attorney

For generations, East Maui communities have fought to restore water to their streams and protect the traditional and customary practices they sustain. Nā Moku Aupuni o Koʻolau Hui (Nā Moku) has carried that fight for nearly three decades, opposing more than a century of diversion for commercial use that drained many streams dry.

This summer brought significant legal developments, including the Board of Land and Natural Resources’ (BLNR) rejection of a 30-year water licensing proposal and Environmental Court orders requiring the contested case hearing Nā Moku and the Sierra Club of Hawaiʻi (Sierra Club) have sought for years.

Together, these developments blocked the proposed generation-long commitment of East Maui water and finally gave the community an evidentiary forum to make its case for protecting traditional and customary Native Hawaiian rights and enforcing the state’s public trust duties – both rooted in the Hawaiʻi Constitution.

In August, BLNR considered and rejected a proposal for a 30-year disposition of East Maui water to Mahi Pono and East Maui Irrigation that would have authorized up to 94.45 million gallons per day (mgd), including 87.95 mgd through a commercial license and another 6.5 mgd for the County.

Nā Moku, the Sierra Club, and other community members opposed the long-term licenses which would have committed East Maui’s public trust water to private commercial use for a generation – despite unanswered questions about Mahi Pono’s water needs, waste, and impacts on Native Hawaiian traditional and customary practices.

Some framed the issue as a choice between healthy streams and water for agriculture. But the 94.45 mgd was extraordinary, even compared with prior amounts authorized by BLNR.

For 2026, BLNR authorized less than half that amount – 41.72 mgd – and the Environmental Court recently reversed that authorization for breach of the public trust. The court instead capped the 2026 diversions at 31.5 mgd pending the contested case hearing requested by Nā Moku and the Sierra Club.

Rejecting the private licenses did not mean choosing between healthy streams and water for agriculture. Nā Moku supported setting aside East Maui water to the County of Maui for public management through the Department of Water Supply and ʻAha Wai o Maui Hikina, the East Maui Water Authority, a direction Maui voters had already endorsed.

BLNR’s rejection means East Maui’s water will not be committed through the proposed 30-year commercial license for now. Mahi Pono and EMI also requested a contested case hearing challenging that decision, which BLNR denied. Meanwhile, how much water may lawfully be diverted in future years remains unresolved.

The next step is the contested case hearing ordered by the Environmental Court on the revocable permit for calendar years 2026 and 2027. The hearing will allow Nā Moku and the Sierra Club to present evidence, cross-examine witnesses, test competing claims, and obtain a BLNR decision based on a developed factual record.

For Nā Moku, that hearing has been a long time coming.

Three times – on the 2016, 2025, and 2026 revocable permits – BLNR denied Nā Moku a contested case hearing. Each of those times, the Environmental Court later concluded that BLNR violated the law and that Nā Moku was entitled to a hearing based on its members’ constitutionally protected traditional and customary Native Hawaiian rights.

In July, the court again confirmed that right and emphasized BLNR’s independent duty to protect traditional and customary Native Hawaiian practices when deciding how much water may be diverted.

The hearing is scheduled for later this fall and will finally examine questions that Nā Moku and the Sierra Club have raised for years: How much water is available, and reasonably and beneficially needed for off-stream uses? How much is lost or wasted? And what do the diversions mean for kalo farmers, fishers, gatherers, and other practitioners whose traditional and customary practices depend on flowing streams?

Those questions are not abstract. Water not diverted remains in the streams, supporting ʻōpae, ʻoʻopu, hīhīwai, kalo cultivation, and other traditional and customary practices.

Nā Moku’s members have described the importance of free-flowing water to maintaining those practices and passing traditional knowledge to future generations.

That generational perspective matters. As early as 1881, East Maui residents petitioned the government to stop commercial diversions. Generations later, their descendants are still fighting over the same water.

Nā Moku should not have to hand that fight to another generation.

This article was originally published in the October 1, 2026, edition of Ka Wai Ola. NHLC partners with the Office of Hawaiian Affairs to publish an article in Ka Wai Ola each month. You can access this article on the Ka Wai Ola website here.