Hawaiian Farmers, Cultural Practitioners Demand Environmental Review for East Maui Water Diversion

posted in: May 2015 | 0
Healoha Carmichael, one of the East Maui residents seeking an environmental assessment of stream diversions by Alexander & Baldwin and East Maui Irrigation Co., Ltd. Credit: Office of Hawaiian Affairs
Healoha Carmichael, one of the East Maui residents seeking an environmental assessment of stream diversions by Alexander & Baldwin and East Maui Irrigation Co., Ltd. Credit: Office of Hawaiian Affairs

Have Alexander & Baldwin, Inc., and its subsidiary, East Maui Irrigation Co., Ltd., been illegally diverting more than a hundred million gallons of water a day from East Maui streams?

Last month, on behalf of East Maui residents Healoha Carmichael and Lezley Jacintho, as well as the nonprofit group Na Moku Aupuni o Ko`olau Hui, Native Hawaiian Legal Corporation attorneys filed a complaint in 1st Circuit Court arguing that the state Board of Land and Natural Resources’ annual approval of revocable permits to the companies violates Hawai`i’s environmental review law. The four permits — for the Nakihu, Keanae, Huelo, and Honomanu areas —  allow the companies to use some 33,000 acres of state ceded land to divert an average of 165 million gallons a day (mgd) from East Maui, the complaint states.

“By authorizing the use of this environmentally and culturally significant area of Maui without complying with Hawai`i Revised Statutes Chapter 343, the BLNR violated the law. By their continued diversion of East Maui water without undertaking environmental review, so did Alexander & Baldwin and East Maui Irrigation,” it continues.

As a result, “[p]laintiffs’ traditions and customs of growing kalo, gathering from East Maui streams, and fishing along the coastline have suffered,” the complaint states.

The NHLC has asked that the court halt the diversions — except for 8.4 mgd to the Maui Department of Water Supply “for public health, safety, and welfare” — until Chapter 343 is fully complied with.

A Long Time Coming

A&B’s predecessors initially received permission from the Kingdom of Hawai`i to divert water from East Maui and A&B/EMI continued their diversions under licenses from the Territory of Hawai`i. As those licenses expired in the 1970s and 1980s, the companies maintained their diversions via month-to-month revocable permits from the Land Board.

State law limits the term of temporary water permits to one year. Even so, the Land Board skirted that restriction by alternating the names on the permits. A permit held by A&B one year would be granted to EMI the next and vice versa.

For years, at each annual swapping, NHLC attorneys complained that the Land Board’s actions kept the status quo without any assessment of environmental or cultural impacts.

In May 2001 the companies requested that the Land Board authorize a public auction for a 30-year lease for the East Maui watersheds and renew their revocable permits to continue the diversions in the meantime. The NHLC, on behalf of Na Moku Aupuni o Ko`olau Hui and cousins Beatrice Kekahuna and Marjorie Wallett, requested a contested case hearing, as did attorney Isaac Hall on behalf of the nonprofit environmental group Maui Tomorrow.

The Land Board deferred voting on the long-term lease and the revocable permits, and instead granted a holdover permit to cover the diversions during the contested case.

A year later, the contested case was still ongoing and the Land Board was poised to renew the holdover permits. Despite requests from Hall and the NHLC’s Alan Murakami for a contested case on whether the Land Board could even do that, the board granted a “holdover of the existing revocable permit on a month-to-month basis pending the results of the contested case,” the Land Board’s May 24, 2002, meeting minutes state.

The following year, the 1st Circuit Court found that an environmental assessment or impact statement would need to be done before the Land Board could grant a long-term water lease, but was silent on whether one was necessary for the short-term permits. Rather than dealing with that issue head on, the parties instead focused on getting some water released to East Maui taro farmers while the contested case hearing proceeded.

In a 2004 contested case filing, the NLHC complained that the Land Board had not even pretended to assess whether the revocable and/or “holdover” permit best served the state’s interest.

“[B]y providing no mechanism for downstream users to redress harm they suffer from excessive diversions by A&B/EMI, the BLNR has ensured the exact opposite result, i.e., to give A&B/EMI carte blanche power to divert without regard for what best serves the interest of the state,” the filing added.

In 2007, based on its hearing officer’s recommendations, the Land Board ultimately approved a release of 6 mgd into a single East Maui stream, Waiokamilo, to satisfy the needs of the taro farmers in Wailuanui. Despite the order, “EMI has maintained that it ceased all diversions from Waiokamilo Stream shortly thereafter because it knew that the natural undiverted flows would not sustain a flow of 6 mgd except during rainy conditions,” stated NHLC attorney Ashley Obrey in an email.

Routine Approvals

More than a decade since it first began, the contested case before the Land Board is still open. The case had been dormant since 2009, with the focus shifting in recent years to efforts before the state Commission on Water Resource Management to amend the interim instream flow standards (IIFS) for more than two dozen of the diverted East Maui streams. The NHLC initiated the IIFS proceedings around the same time it requested a contested case hearing from the Land Board.

When the Land Board issued its last order in the contested case in 2009, it was assumed that a final order would come only after the Water Commission determined, through the IIFS process, how much water should remain in those streams to allow native Hawaiians to adequately exercise their traditional and customary rights. It was thought (although not by the NHLC) that the Land Board lacked the expertise to determine that on its own and would be better equipped to resolve the long-term water lease issue with input from the Water Commission. But with the IIFS process also taking years to resolve, the NHLC asked the Circuit Court last year to order the Land Board to reconvene its case and make its own assessment of the diversions’ cultural and environmental impacts. The court granted the NHLC’s request, ordering the Land Board to move toward rendering a decision.

“In other words, BLNR can no longer afford to delay a decision on A&B’s now long-pending, long-term lease application which has made a mockery out of the entire process,” Obrey stated.

Still, no one knows how long it will be before final, non-appealable decisions are made in the contested case hearings before the Water Commission and Land Board. It’s been 14 years already and A&B and EMI continue to divert water, paying the state the same minuscule rate it had in 2001. And they had been doing so under “holdover” permits.

Five years ago, Murakami told Environment Hawai`i  that holdovers don’t exist in either statutes or rules and that his clients may need to address the legality of that at some point. That point appears to have come when an EMI president Garrett Hew, testifying at a March hearing before the Water Commission, stated that the companies’ water permits have been continuously renewed by the Land Board since 1987.

Under state law regarding holdovers for land uses, HRS Ch. 171-40, the Land Board may grant a lessee a one-year holdover extension following the lease’s expiration. If the Land Board does not decide by the end of that one year how to dispose of the land, it may then issue a month-to-month revocable permit to the lessee.

Since 2002, the Department of Land and Natural Resources’ Land Division has regularly included in its bulk list of permits recommended for annual renewal by the Land Board the four water permits to A&B and EMI held over from 2001. The “holdover” aspect of these permits seems to be reflected by the fact that the DLNR has not alternated the permit holder each year as it had in the past. Instead, A&B has maintained the same three revocable permits and EMI has kept its same one granted by the Land Board in 2001.

Despite the apparent limitation of holdovers to one year, Land Division administrator Russell Tsuji suggests that the term can be more broadly construed.

Holding over, he said, “is generally thought of as the continued tenancy and status quo, on the same terms and conditions as in the past unless otherwise so noted. Generally you’ll see us do more of it in connection with expiring leases under HRS 171-40.  My view [is], although 171-40 is about expiring long-term leases, the concept is the same for revocable permits, from a real estate or real property perspective.”

This practice, however, apparently contradicts what the East Maui community understood the situation to be.

“The basic premise is that the BLNR, rather than reissuing revocable permits each year (supposedly!), ‘held over’ the last revocable permit until the contested case hearing regarding A&B’s long term lease was resolved,” Obrey said.

The complaint states that the Land Board had repeatedly represented that “as early as 2003, the revocable permits were not in operation until its decision on whether to award a long term lease, and there were no further requests for the issuance of such permits.”

“East Maui taro farmers, as well as those who gather and fish along its stream beds and shoreline, are disappointed and shocked that the state, through its revocable permit process, continues to grant permits to the biggest diverters of stream water in the islands,” an April 14 NHLC press release states.

“[T]he BLNR has indeed reissued/renewed permits to A&B/EMI despite the holdover (which, again, we have always argued was illegal),” Obrey stated.

The Land Board has “completely absolved A&B, since at least 2003, of having to submit any kind of request or application whatsoever to continue diverting in this manner and for as long as objections to their long-term lease application were still pending,” she continued.

The Land Board most recently renewed the permits for another year on December 12, 2014, without any environmental assessment or declaration that the issuance of the permits is exempt from the requirements of HRS Chapter 343. The NHLC complaint states that the Land Board’s action does not qualify for an exemption because of the diversion’s significant cumulative impact.

Edward Wendt, an east Maui taro farmer and Na Moku president, said an environmental assessment is “a must.” The Land Board, A&B, and EMI “can’t continue on like they are without acknowledging the severe impacts on this area and the people who call it home,” he said.

Although the irrigation system diverts an average of 165 mgd, the permits allow the companies to divert up to its maximum capacity of 450 mgd, “almost three times more than the island of O`ahu uses daily,” the press release states.

Most of the water that A&B and EMI divert feeds the 30,000 acres of sugarcane fields in Central Maui owned by A&B subsidiary Hawaiian Commercial & Sugar. A little more than 8 mgd is used by Maui County for residential use in Upcountry and Nahiku.

— Teresa Dawson

For Further Reading

Environment Hawai`i has given extensive coverage to East Maui water issues over the years. For more background, see the following:

  • “Appeals Court Orders Contested Case in East Maui Water Dispute,” EH-XTRA, November 30, 2012;
  • “Water Commission Denies Hearing on Flow Decisions for East Maui,” November 2010;
  • “Water Commission Amends Flows for Six of 19 East Maui Streams,” July 2010;
  • “Water Commission Defers Vote on East Maui Stream Restoration,” March 2010;
  • “Water Commission Amends Standards for Six Diverted East Maui Streams,” and “Land Board Resumes Discussion of Diversion of East Maui Water,” November 2008;
  • “Land Board Orders EMI to Release Water to Meet Needs of East Maui Taro Farmers,” May 2007;
  • “Commission Gains Funds, New Tools to Pin Down Water Use, Stream Needs,” September 2006;
  • “Ex-Judge Says East Maui Farmers Don’t Need More Water for Taro,” August 2006;
  • “East Maui Taro Farmers May Receive Interim Relief From Water Diversion,” December 2005
  • “Water Commission is Urged to Look at Lessons from Mono Lake Dispute,” August 2005;
  • “Board Talk: Land Board Favors EMI Water Diversion,” March 2003;
  • “Board Talk: East Maui Water Dispute Heats Up with Hearing Officer’s Recommendation,” January 2003;
  • “Board Talk: Contested Case on Renewal of EMI Water Permits,” July 2001;
  • “Battle Looms Over Waters Diverted from East Maui Streams” and “Complex Legal Issues Surround A&B’s Taking of East Maui Water,” August 1997.

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