On January 9, the contested case hearing on Na Moku Aupuni o Ko‘olau Hui’s 2001 petition to amend the interim instream flow standards (IIFS) of 27 East Maui streams resumes. The group, which includes native Hawaiian taro farmers and cultural practitioners from the area, has long sought restoration of streams that have been diverted for roughly a century by Alexander & Baldwin, Inc. (A&B) through its subsidiary the East Maui Irrigation Company (EMI).
This past January, hearing officer Lawrence Miike finalized his recommendations on how much water should be returned to streams, how much should go to Maui Department of Water Supply customers in the upcountry area, and how much could be reasonably diverted for A&B subsidiary Hawaiian Commercial & Sugar’s sugarcane plantation, which spans tens of thousands of acres in central Maui. He determined that 140.19 million gallons a day (mgd) for sugarcane, 7.1 mgd for the Maui DWS’s Kamole Water Treatment Plant and Kula Ag Park, 6.66 mgd for HC&S industrial uses, and 34.95 mgd in irrigation system losses due to seepage or evaporation were reasonable, beneficial offstreams uses. Those uses totaled 188.9 mgd. However, Miike noted that if HC&S used 83.32 mgd from its brackish water well, it would only need 105.58 mgd of diverted water.
Shortly before Miike released his recommendations, A&B dropped a bombshell: it planned to close plantation operations at the end of the year and seek to use the lands for diversified agriculture. To recalculate reasonable, beneficial offstream water uses in light of this dramatic change, the state Commission on Water Resource Management, which will ultimately decide how to amend the IIFS, decided earlier to reopen the hearing.
In October, parties to the case submitted their opening briefs. Response briefs are expected to be filed this month. In those opening briefs, HC&S unveiled its detailed vision for its former sugarcane lands, Maui County asked for more water to address current and future needs, and the Maui Tomorrow Foundation urged the Water Commission to refrain from giving HC&S’s hypothetical future water uses much, if any, weight when determining the IIFS.
No opening brief from Na Moku was filed, according to an attorney with the Native Hawaiian Legal Corporation, which is representing the group.
Hawaiian Commercial & Sugar
According to HC&S’s opening brief, EMI has restored much of the water it once diverted back into East Maui streams and no water at all is being diverted from the Nahuku or Ke‘anae water license areas. (A&B and EMI divert water from four license areas controlled by the state: Nahiku, Ke‘anae, Huelo, and Honomanu.) Although EMI’s ditch system has the capacity to divert hundreds of millions of gallons a day, HC&S states that it is now taking only 20 to 25 mgd from East Maui to meet the Maui DWS’s needs as well as its own requirements for industrial uses, firefighting, dust control, diversified agricultural test crops, and erosion-controlling cover crops. While this amount is a fraction of what’s been historically diverted, the company anticipates that its future water needs may again exceed 100 mgd.
HC&S argued that the state Water Code requires the Water Commission to consider not only current non-instream uses, but potential uses of water that benefit the public. The company pointed out that of its 31,000 acres of sugarcane fields, 22,254 of those acres have been designated by the state Land Use Commission as Important Agricultural Lands.
Included in HC&S’s exhibits is a map, dated March 2016, depicting the company’s vision for its Central Maui lands once sugar operations end. According to the map, the company foresees the bulk of the lands will be used to support livestock (including dairy operations) and biofuel or bioenergy crops. Large areas are also earmarked for diversified farm leases, agricultural parks, and beverage crops such as coffee or cacao.
HC&S explained that the plan is not fixed or guaranteed. “[I]t is extremely challenging to immediately identify an economically viable plan to maintain the majority of the HC&S lands in an alternative agricultural use. This plan will evolve over time,” it stated.
Most of the area, 26,600 acres, will need to be irrigated and HC&S has calculated the foreseeable water needs for each crop or use. To meet all of those needs and to account for reasonable irrigation system losses, HC&S claimed it would need 116 mgd.
Some of the planned uses — i.e., pasture, dairy, orchard, pongamia (a biofuel crop), and bioenergy crops — may be met with groundwater from its brackish well, which has historically provided HC&S with about 70 mgd, the brief stated. However, the company warned, the cessation of sugarcane production may decrease the amount of water that percolates into the aquifer below, thereby reducing the well’s capacity. It also noted that some of the planned crops may not tolerate brackish water and that well water is more expensive than surface water.
“The assurance of the availability of an economically feasible source of water is necessary to justify such major investments by A&B and others who will be farming on HC&S land. Additional operating costs, such as the cost to pump groundwater, could cause the return on these investments to be less attractive and difficult to justify,” the brief stated.
Maui Department of Water Supply
During prior contested case hearings on the IIFS of East Maui streams, the Department of Water Supply refrained from seeking more water because, given HC&S’s needs at the time and the instream uses pursued by Na Moku and the Maui Tomorrow Foundation, “there quite simply would not be enough water to meet those demands,” the department stated in its opening brief. Currently, the county requires around 8.4 mgd of diverted water.
In January, Miike concluded that restoring a mere 18 mgd would meet instream uses, while HC&S announced plans that suggested it may need a lot less water. Given that, “it now appears there is sufficient water to accommodate MDWS future needs,” the county stated.
For Upcountry, meeting the needs of the 1,852 applicants on the department’s water meter priority list as well as 8,000 or so future area residents would require an additional 9.15 mgd, it stated. Although the county has wells there that can provide up to 3.4 mgd, surface water is cheaper, it added.
The agency, citing several county planning documents, argued in support of A&B’s plans to keep Central Maui in agriculture, as well as EMI’s continued operation of the East Maui Irrigation system. If EMI should for some reason stop maintaining and operating the system, the county said, it would be concerned that it might not be able to continue supplying water to its 35,000 customers in Upcountry. The county lacks the capacity and expertise to take over the system, and coming up with alternatives to East Maui surface water would take time, it stated.
Maui Tomorrow Foundation
In its opening brief, MTF disputed HC&S’s claims that EMI has modified its ditch system to restore vast amounts of water to East Maui streams.
In the midst of this past legislative session, as controversy raged over bills aimed at giving water permittees (principally A&B) the ability to obtain a three-year holdover while the state Board of Land and Natural Resources decided on their applications for long-term water leases, the company announced that it would be permanently restoring water to eight priority streams that provide water to taro farmers and residents in East Maui. In its opening brief, MTF argued that A&B and its subsidiaries have not fulfilled that promise. Streams in the Hanehoi watershed — where residents rely on stream water for domestic uses — have not been fully restored, and EMI is either wasting water or not restoring unused water to streams targeted for restoration, the organization stated. Instead, EMI has been releasing into a single stream — Honopou — water that is no longer needed for HC&S’s sugarcane, contrary to a request by Miike that this excess water be released into “those of the 27 streams that the Hearings Officer recommended to have increased flows,” MTF stated.
Regarding any proposed amendments to the IIFS, MTF argued that the cessation of HC&S’s sugar plantation is such a massive change “that a wholesale re-opening is required of any state granted rights to these East Maui waters, the manner in which they are to be transmitted, where they are to be transmitted, as well as who may qualify to use these waters. These issues cannot be decided in this proceeding alone and wider notice of the opportunity to qualify for these waters is required.”
Because East Maui is not a designated water management area where water use permits are issued by the Water Commission, the Land Board will ultimately decide whether or not A&B and/or its subsidiaries will continue to have rights to East Maui water. A&B is working toward completing an environmental impact statement for its proposed long-term water lease for the four license areas, and the Land Board is expected to eventually hold a public auction for that. The amount to be diverted under the lease will be limited largely by the Water Commission’s determination of how much water should remain in streams and how much can be diverted for offstream uses.
In MTF’s view, allocating or reserving any water for HC&S’s fields during the IIFS process would constitute a “clear, reversible error,” and any discussion of the company’s proposed future uses should be subject to a full evidentiary hearing.
“It cannot be automatically assumed that A&B and HC&S have any rights to reserve these waters for themselves or their surrogates to be used on lands that formerly constituted the HC&S sugarcane plantation. … Just because the diversions were constructed to direct East Maui’s water to the HC&S plantation does not automatically mean that the HC&S plantation owners possess any rights to maintain control over that water once the plantation no longer operates and the fields are not used at all or are not used for sugarcane. …
“The CWRM cannot allocate water to a closed plantation with unused fields,” MTF stated, adding that while the commission has some authority to provide for future uses, HC&S’s alleged future uses “cannot be hypothetical and speculative, such as possible cattle ranching and possible biofuel production. At some point when these future uses ‘ripen’ some allocation may, at that time, be made.”
With regard to the DWS’s request that it be allowed more water from the diversions, MTF stated that it wants East Maui streams to be fully and permanently restored before any more water is awarded to the county.
“[I]t could not be plainer that long-ignored and unsatisfied legitimate ‘present’ riparian, appurtenant and instream needs must have priority over speculative, now non-existent ‘potential’ future offstream uses.
“We have waited far too long to hear the sounds of our streams alive once again in our valleys,” it stated.
Land Board Rejects Request To Halt A&B Stream Diversions
Na Moku and other East Maui residents represented by the Native Hawaiian Legal Corporation have been fighting on a number of fronts A&B’s ability to continue diverting streams while the Land Board decides on its application for a long-term lease. In December 2015, after 1st Circuit Judge Rhonda Nishimura indicated she would be invalidating holdover revocable permits (as she did in her decision issued last January 8), the Land Board stopped short of reissuing such permits to A&B and instead it simply reaffirmed a decade-old decision to continue the diversions on a holdover basis.
The state Intermediate Court of Appeals is slated to decide on an appeal of the 1st Circuit Court’s decision. Meanwhile, Na Moku is fighting the Land Board’s 2015 decision in the state’s new Environmental Court, which is scheduled to hear oral arguments in the case on December 22.
Na Moku has also appealed to the Land Board itself, which has an open contested case hearing on A&B’s 2001 application for a 30-year water lease. Earlier this year, the group submitted a petition to the board asking it to reject A&B’s lease applica- tion, halt of all of the company’s current diversions from East Maui (except those needed to meet DWS needs), and require the company to provide more information on its water demand and meter all streams with diversions. On August 26, the Land Board denied the petition.
With regard to Na Moku’s request that all of A&B’s diversions cease, the board stuck to its position that its 2007 contested case hearing order for an interim release of a few million gallons of water to several East Maui streams, while continuing the diversions on a holdover basis, remained in effect.
“No party appealed this order. The board, in the context of this contested case, cannot summarily reverse its 2007 order without procedural and evidentiary safeguards when the decision depends on facts disputed by the parties, such as the current needs for water and the effect of diversions on stream life. Unquestionably, the end of sugar cultivation will affect the allocation between instream and offsite uses when this is considered again by the board, but rather than commence its own evidentiary hearings on this subject, the board prefers to wait for the current CWRM proceedings,” the board stated in its most recent order.
It went on to say that it was unaware of any evidence that the diversions, if contin- ued for a few months to allow for the Water Commission’s review, would permanently harm ecosystems or contribute to the extinc- tion of any species. “Petitioners have also not shown that the public interest otherwise requires that diversions cease during this interim period before the CWRM review is completed,” it stated.
— Teresa Dawson