After spending hours hauling hau branches into a pile, I look up through a hole in the canopy that others have made with machetes and pruners. Sunlight streams through the opening and lands on the stone wall of an ancient agricultural terrace while the men take a breather on the flat bed of earth they’ve cleared. One day, this will be a place of learning and healing. Then the thought occurs to me: Have we just done something illegal?
In hidden valleys across the state, hau trees and brush are being cleared as ancient Hawaiian lo`i (terraces) and auwai (watercourses) are restored to working order. Who is doing this? People wanting to teach children Hawaiian culture, Hawaiian families practicing their customary rights, entrepreneurs seeking an extra source of income, people wanting to live a simple, clean life of sustainable farming, and many more.
Some are unaware of the permits that such work may require. Others who are aware proceed on their own in knowing disregard of the rules.
Should they be punished? Or should they be given a pass since, after all, the work is merely to revive a pre-existing land use? For any crop, those questions would be difficult enough; for taro, burdened with its rich history and meaning for Hawaiians, the questions are enough to leave regulatory officials scratching their heads in puzzlement.
The Gauntlet
Hawaiians were sticklers for protocol. In Native Planters in Old Hawai`i by E.S. Craighill Handy and Elizabeth Green Handy, it states that when plants sprouted their first few leaves, farmers would thank the god Kane in prayer. After the huli had grown a bit and the farmer weeded his patch and pressed the taro plants into the soil, and farmers would pray to the god Ku to make them grow big and strong. “After this prayer, no one must go into the lo`i,” they write. Before harvest, farmers prepared a ritual fire, and with a young taro shoot and leaves, again said a prayer to Ku.
Protocol remains important to Hawaiians and much of the recent restoration has been done in the Hawaiian way. When more western-style regulations are thrown into the mix, the process of restoration can become so cumbersome, confusing, and challenging that many throw in the towel rather than do things by the book.
Consider Ha`ena, Kaua`i, where the Department of Land and Natural Resources’ Division of State Parks is overseeing the restoration of a series of lo`i kalo (taro fields). Members of a local community group are doing most of the work, but it falls to State Parks to make sure everything is done according to regulations. The division has applied for three stream permits from the Water Commission, has developed an archaeological restoration plan, and has had to commission a water engineering study. To comply with the DLNR’s Land Division requirements, State Parks must have the Board of Land and Natural Resources approve a Ha`ena State Park Master Plan or a Conservation District Use Permit.
The Ha`ena project is larger and more complicated than most other restorations. On top of the work of restoring more than a dozen agricultural terraces, there are abandoned cars, piles of garbage, and about 60 trees to remove. Even for an agency such as State Parks, the hurdles are high and have required thousands of dollars and will take more than a year to clear. But even for people with smaller projects in mind, many of the same obstacles exist; for such people who lack the resources and staff of a state agency, those hurdles can seem insurmountable:
á The U.S. Army Corps of Engineers requires permits for doing practically any kind of work in the country’s coastal waters, waterways or wetlands. Projects with minimal impact require only a general permit that requires little paperwork. In 1997, the Army Corps developed a regional general permit for rebuilding lo`i kalo that streamlines the permitting process. According to a source at the Corps, a few permits have been issued, notably in the Hanalei area.
á Under the federal Clean Water Act, National Pollutant Discharge Elimination System (NPDES) permits control water pollution by regulating sources that discharge anything into the water. Since taro farms often divert water from and into streams, NPDES permits could be required. According to a DOH representative, however, few if any have been issued for taro operations.
The Water Commission requires permits for diverting water from streams, for altering stream channels, and for water use – activities that often come into play in taro cultivation.
Taro farmers in the Hanalei and Hule`ia National Wildlife Refuges of Kaua`i have been granted special permits because the U.S. Fish and Wildlife Service has decided that the fields have a beneficial impact on the bird species there. No one may operate in the refuge without a special permit.
County governments require permits for development along or near the coast in the designated Special Management Areas. That “development” could include anything from the “placement of solid or liquid material, or thermal waste” to grading or mining to a “change in intensity of use of water ecology,” to list just a few of the actions identified in the rules of the City and County of Honolulu. State law exempts some projects, such as building a single-family residence, but the restoration of ancient lo`i is not among the exemptions.
In lands that have been placed in the state Conservation District, restoration work must be done under terms of a Conservation District Use Permit granted by the state Board of Land and Natural Resources.
While the state Historic Preservation Division has no administrative rules, it has required archaeological surveys for work on state land or in areas having significant historical sites.
Few Violations
In a 1994 documentary by Victoria Keith and Dana Naone Hall called “Back to the Roots,” Wai`anae’s Eric Enos talks candidly about the time decades ago when he and his youthful friends tapped a stream diversion that had robbed water that once fed taro for sugar. With a couple of pipes poked into the diversion, Enos was able to provide water to the lo`i kalo they had restored.
Enos, founder of the Cultural Learning Center at Ka`ala Farm, is held in high regard by many up-and-coming taro farmers and his farm has spearheaded efforts to teach Hawaiian culture through the cultivation of taro. He defends their actions by noting that the lo`i and an auwai that fed it were on the land long before the diversion was made. In his mind, there was no question that they had rights to use the water and needed no permission from the ditch owner or the government to exercise those rights.
Sometimes even state agencies seem to avoid running the full gamut of permitting. In the mid-1990s, the Division of State Parks encouraged the restoration of lo`i in Kahana Valley on O`ahu’s windward side. The entire ahupua`a is owned by the state and managed by State Parks as a cultural park. When members of families who had been longtime residents in the valley began clearing their ancestral lo`i, photographs published in the press showed them working side by side, pulling weeds and clearing brush – all without benefit of any DLNR permits.
Al Rogers of Kahana State Park says that while the whole valley lies in the Conservation District, the work requires no permit. “There’s a lot of controversy,” he said. “We’re kind of operating under the theory that if you’re not changing the use you don’t have to go thorough the CDUP process. We’re just putting something back. Nobody’s got on us” for the work.
Wetland taro is a water-intensive crop. Ancient Hawaiians used auwai to divert water from a stream or a spring into the taro patch. Lo`i systems were designed to divert water back to the stream once it moved through the patches. Over the years, lo`i restoration projects have been popping up all over the state. Yet the Water Commission’s database lists a few permits or applications for restoration of auwai and only one violation.
One reason for the low numbers is that people aren’t diverting as much water for taro as they are diverting for other purposes. “We’ve caught guys putting things in the stream for aquaculture and crop irrigation, corn and other stuff,” says Roy Hardy of the commission staff. “For taro, there have been less than a dozen incidents over the past dozen years.”
According to Hardy, the commission relies heavily on complaints to determine stream diversion violations. “When people are drilling wells, you can see it,” he says. A little PVC pipe stuck in a stream in someone’s back yard, perhaps hidden by brush, is much harder to find.
Hands Off
Even when the Water Commission’s staff members know of regulatory violations involving work on lo`i and auwai, they seem reluctant to enforce with penalties.
Take the case of work along Pukele Stream in Palolo Valley.
The project traces its origins to 1994, when the Department of Health and the Environmental Protection Agency launched a major project intended to clean up the Ala Wai Canal watershed, an area that includes Manoa and Palolo valleys. As part of the project, the Palolo sub-watershed group undertook to restore lo`i at Pukele Stream.
Palolo is easternmost of the wet taro valleys on O`ahu’s Kona side. Native Planters describes Palolo Stream as “large and capable of irrigating terraces along its course on both sides and below the end of the valley on land now covered by houses. There were terraces, some on steep slopes, all along Waiomao and Pukele Streams, which join to form Palolo Stream. Far back in these little valleys wild taro was found in abundance in 1935.”
The watershed project was to take place on the campus of Ke Kula Kaiapuni `o Anuenue, O`ahu’s first K-12 Hawaiian language immersion school. Like Ka`ala Farm, Anuenue school’s lo`i would help pupils learn Native Hawaiian culture hand in hand with the cultivation of taro and production of poi. As an added bonus, the restored lo`i were to filter the infamously polluted stream water that drains into the Ala Wai canal. Traver Carroll, a member of the Palolo sub-watershed group and land agent with the DLNR, says the restoration began around 1998.
Soon thereafter, work on the auwai came to the attention of Water Commission staff. While the David Higa of the Water Commission staff insists that the staff never proposed that the six-member commission levy a fine for the violations, a source close to the school says the school was put on notice that it could be subject to fines of totaling tens of thousands of dollars. That prompted Carroll to write the commission in May 1999, in hopes of obtaining an after-the-fact permit.
As Carroll explained it, a diverted spring water outlet allowed for the initial restoration, done under the supervision of kupuna Uncle Eddie Ka`anana, who had taught hundreds of school children at Ka`ala Farm. At full capacity, Carroll wrote, 11,500 gallons a day could be diverted, of which 11,000 would be returned to the stream.
“While the well-being and health of the streams in the Ala Wai Watershed are our primary concern, we feel strongly that É we are entitled to use this resource as long as our use does not negatively impact the stream, its aquatic inhabitants, or other downstream users,” he wrote, citing “the acknowledged historical appurtenant right to use stream water on this land for the cultivation of kalo and the community building and educational potential of this project.”
No permit was forthcoming, but the Water Commission staff seems to have dropped any thought of fining the school. In October 1999, the commission’s director, Linnel Nishioka, wrote principal Charles Naumu: “I congratulate you for the work you have accomplished in transforming Anuenue School’s backyard from a jungle to a lo`i and garden where one can enjoy the outdoors and Pukele Stream. I was impressed when I visited the area earlier this month.”
She continued, “I am not recommending and do not foresee that the commission would levy any fines for doing the work. Also, my staff would be very happy to work with Anuenue School on stream-related projects that would be eligible for federal funding.”
For a short while, Water Commission staff worked on after-the-fact approvals for the project to take to the commission. To date, nothing has been presented to the commission for approval, and the school is diverting water without permits.
Carroll told Environment Hawai`i, “We sat down under the tree with Uncle Eddie and some people from the school and the head of the Water Commission. We had a long talk and it evolved into it wasn’t necessary to get a permit.”
Nishioka says, “We decided that enforcement under the circumstances – we were at the time considering whether or not we even wanted these rules – was inappropriate.” Although Nishioka’s comments and those of her staff say nothing of the delicate issue of Hawaiian sovereignty, this, too, may have come into play in the decision. In the Water Commission file on the diversion is a news clipping from an October 1999 Honoululu Advertiser article headlined, “Defendants say Hawaiians not subject to state, county law.” The article is about Hawaiians driving without licenses or automobile safety inspections, and camping without permits.
On the Back Burner
A similar situation arose on Moloka`i in 1997, when Mahealani and Glenn Davis and a number of their friends undertook a lo`i restoration project in Halawa Valley, where almost all the land is in the state Conservation District. The community built a 30-foot-wide dam on Halawa Stream that diverted water into an auwai that fed their fields. The project has since been lauded for its beautiful restoration.
A complaint by Moloka`i resident George Peabody to DLNR enforcement officers led to the discovery that the Davises and those working with them had no permits from the Water Commission or the Land Board. Rather than pounce on them, the Water Commission tried to work with the Davises on getting after-the-fact permits. But as the months wore on, it became clear that the issue was much larger than the single diversion of Halawa Stream.
On October 23, 1998, Mahealani Davis wrote to Tim Johns, then the Water Commission’s director: “We feel the present form and process is reflective of the unfinished business (definition of the relationship) between the state of Hawai`i and the native people of Hawai`i. We do not see clear points for our traditional activities, nor are we assured our rights will not be diminished if we participate in a ‘regulatory’ procedure. Guess the bottom line is we need some clarification of the relationship between the state of Hawai`i and regulatory process requirements and renewed traditional/stewardship activities.”
A month later, the Water Commission convened a meeting in Honolulu with taro farmers and permitting agencies to work out a solution. At the Honolulu meeting, Higa says, the farmers found out how long and complicated the permitting process was going to be and “realized they had an immense task.”
In May 1999, the state Office of Environmental Quality Control took the lead in working with the taro group Onipa`a Na Hui Kalo, which Glenn Davis chairs, and the Queen Lili`uokalani Children’s’ Center, which has provided institutional support to Hui Kalo and its lo`i restoration efforts across the state. The OEQC was “trying to get taro farmers and permitting agencies to get together and work out ways to facilitate issues of permitting,” says OEQC’s Leslie Segundo. Once farmers and agencies get into a dialogue, Segundo says, “then they can identify weaknesses in the system and propose legislation [to fix them]. But first, they need to find common ground in interpreting regulations.”
The effort seemed promising but has since stalled. Glenn Davis suffered an aneurysm in 1999 and after that, Segundo says, “things kind of fell apart. We were hoping to get federal grant to help out, but it fell throughÉ It’s something we want to pursue, but it’s on the back burner.”
Enforcement at the DLNR also seems to be on the back burner: According to Ed Sakoda of the Water Commission, no action has been taken regarding the Davises’ situation because of hang-ups at the Land Division. Yet Sam Lemmo of the Land Division says his agency has not conducted an investigation and has been waiting to see what the Water Commission would decide. No fines have been levied and the no after-the-fact permit applications have been submitted. What’s more, Charley Ice of the Water Commission staff says the Halawa taro farmers have resisted further on-site inspection by the commission.
To help other taro farmers avoid running into trouble with regulatory agencies, Hui Kalo devised a set of alternative rules, called Pono Practical Procedures. These would provide guidelines that small taro farmers could follow instead of having to jump through high regulatory hoops. At the same time, the procedures were intended to provide protection for historic sites, stream life, and other resources whose protection customarily is addressed through the standard regulatory procedures. The initial hope was that state agencies would somehow incorporate the procedures into their own rules, thus allowing an opportunity for taro farmers to comply with the rules without being burdened with onerous permit requirements.
But efforts to get agencies to recognize the Pono Practical Procedures seem to have stalled out. The Water Commission staff is only vaguely aware of them and says that nothing formal has been proposed or is being considered.
In any case, perhaps the procedures are unnecessary, at least so far as the Water Commission is concerned. As Nishioka told Environment Hawai`i, “One of the issues we’re looking at is whether this is the kind of activity we want to regulate. The SWAT program [Slash Waste and Red Tape] was looking at whether we are currently regulating things that don’t need to beÉ Lo`i restoration was one of those issues. Most of the requests are coming from people who are going to exercise their customary rights, which stems from the PASH decision.” (The SWAT program was established in the Office of the Lieutenant Governor to look at where government might cut down on wasteful or wasted efforts. The PASH decision – for Public Access Shoreline-Hawai`i – was a ruling by the state Supreme Court that affirmed the rights of Hawaiians to have access to undeveloped areas to exercise customary rights and gathering.)
As far as the restoration of auwai is concerned, Nishioka says that so long as the auwai existed “prior to the time the Water Code was passed,” in 1987, restoration needs no permit from the commission. “If they are expanding the use of auwai or something like that, we would require them to have a permit,” she says.
As far as any proposed rule changes are concerned, Nishioka says she’s not sure what the timetable is. In the meantime, “If we get complaints, we go out and investigate,” she says.
— Teresa Dawson
Volume 12, Number 4 October 2001
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