Earthjustice attorneys have sued the Maui Department of Water Supply over its acceptance of a final environmental impact statement (EIS) for a plant that would treat surface water collected from Central Maui streams and pipe it into the DWS system, to meet future development needs. Earthjustice is representing Hui O Na Wai `Eha and the Maui Tomorrow Foundation. Both were parties in the recently concluded contested case hearing before the state Commission on Water Resource Management over how much water should be left in the streams and how much should be allowed for off-stream uses, primarily by Hawai`i Commercial and Sugar (HC&S), a subsidiary of Alexander & Baldwin that operates Hawai`i’s last sugar plantation.
The EIS was actually prepared by A&B, which, under an agreement involving A&B, the Wailuku Water Company, and the DWS, will build a treatment plant to scrub 9 million gallons a day diverted into the Wai`ale reservoir from Na Wai `Eha. The facility would be sited on A&B land, with the water it produces then fed into the DWS system. In return, A&B would be able to use some fraction of the treated water for future developments, and the county would also pay A&B and WWC for the remaining water.
The final EIS was accepted in early April by the DWS; notice of the acceptance was published in the Office of Environmental Quality’s “Environmental Notice” on April 23. Last month, two days before the 60-day window for legal challenge passed, Earthjustice sued.
The complaint, filed in 2nd Circuit Court, asks for a determination that the EIS does not comply with the state’s environmental disclosure law, Chapter 343, Hawai`i Revised Statutes. Contrary to the full description of impacts required by statute, the EIS “limited its discussion to the direct impacts in the immediate vicinity of the project site and left critical issues of public interest and importance – such as the impacts of diversions on Na Wai `Eha water resources, the economic characteristics and impacts of the proposed water deal between A&B, WWC, and Maui County, and mitigation and alternatives – entirely unaddressed.”
The plaintiffs ask the court for a declaratory judgment, finding that the EIS violates Chapter 343; that the DWS’s acceptance of the EIS is invalid; and that the proposed plant “may not legally proceed” until full compliance with Chapter 343 is achieved.
The project may face another obstacle, apart from the court challenge. There is no certainty that the stream water A&B is proposing to treat will be available for that use, especially since the Water Commission decided last month that 9 mgd for the proposed plant was not a reasonable use of Na Wai `Eha water. After the Water Commission’s Na Wai `Eha decision, all current and future users of stream water must file a Water Use Permit Application (WUPA). While A&B was allowed to continue its current diversions, it, too, as well as the county and WWC, still must have their WUPAs for stream use approved by the commission at a future date.
After reading news reports about the county’s plans, commission chair Laura Thielen says she was surprised that it was still proceeding with the plant’s development given the commission’s decision.
“The county has missed the message…and needs to take action to reduce waste and develop water sources [other than surface water],” she says.
HC&S general manager Chris Benjamin, however, says that commission’s Na Wai Eha decision regarding the Wai’ale plants, could be “detrimental to residents, businesses, farmers, and local government. The larger issue here is finding additional water sources for the community’s needs. That’s a County of Maui priority…and is the reason we were asked to develop this water treatment facility for the public benefit.”