Court Holds Final Arguments in Case Over Stream Diversions in East Maui

posted in: October 2020, Water | 0

On September 24, Environmental Court Judge Jeffrey Crabtree heard final arguments in a case brought by the Sierra Club of Hawai‘i over permits that allow East Maui stream water to be diverted out of the watershed. The group argues that the state Board of Land and Natural Resources failed to fulfill its public trust duties and violated the Coastal Zone Management Act when it decided in 2018 and 2019 to continue four revocable permits to East Maui Irrigation (EMI) and Alexander & Baldwin, Inc. (A&B), for the use of state land to divert tens of millions of gallons of water a day (mgd), mainly for diversified agriculture.

In November 2018, the Land Board approved the permits with the only limit being that the amount diverted had to be consistent with interim instream flow standards (IIFS) set by the Commission on Water Resource Management earlier that year for about two dozen streams.

In October 2019, the board capped the diversions at 45 mgd — 10 mgd more than what the Department of Land and Natural Resources’ (DLNR) Land Division had recommended.

In arguing for the increase, board member Chris Yuen pointed out that IIFS standards set by the Water Commission left 93 mgd available for offstream use. And Mahi Pono, which co-owns EMI and had purchased most of A&B’s former sugarcane lands in Central Maui with the intent of developing diversified agriculture, testified at the time that 35 mgd would be insufficient to meet its projected needs. Lucienne De Naie of the Sierra Club’s Maui group, however, testified that the company’s purported water needs amounted to a whopping 10,000 gallons per acre per day, an amount she said none of Mahi Pono’s proposed crops for the area would require.

After being denied a contested case hearing by the board, the Sierra Club sued, asking the court to cap the amount of water the companies divert under the revocable permits to 27 mgd.

It also asked the court to maintain that cap until the Land Board took a number of actions to protect the public trust, including filing a petition to amend the IIFS of 13 East Maui streams that were not part of the Water Commission’s 2018 order. The IIFS for those 13 streams were set in 1988 at whatever the status quo was at the time.

The Sierra Club, represented by attorney David Kimo Frankel, pointed out that the Land Board never knew or inquired about how much water EMI/A&B were diverting from each stream when it approved the permits. In any case, he stated, “research indicates the minimum flow necessary to provide suitable habitat conditions for recruitment, growth and reproduction of native stream animals is 64 percent of median base flow.”

Before the Land Board voted in 2019, the Sierra Club highlighted a 2019 report James Parham prepared as part of A&B’senvironmental impact statement for a long-term lease for the permit areas. “He concludes that the diversion of water from these 13 streams reduces habitat units on those streams from 588,000 square meters to 88,386 square meters – a reduction of 85 percent.”

Frankel noted in his proposed decision and order that Glenn Higashi of the DLNR’s Division of Aquatic Resources testified in a deposition that such an impact was “significant.”

Frankel argued that the court should order the board to ensure the diverted water is being used reasonably and beneficially, and to justify its decisions to allow less water to remain in streams than is needed for suitable habitat conditions.

He pointed out that A&B/Mahi Pono was using far less water than they said they would need. A&B planned to divert 35 mgd in 2019, but actually diverted just 27 mgd. Mahi Pono planned to increase diversions to 45 mgd in 2020, but in the first quarter of 2020, “A&B diverted an average of 27.79 mgd. In the second quarter [it] diverted an average of 22.6 mgd,” he wrote.

“If Mahi Pono made better use of the water west of Honopou stream, lined its reservoirs, used groundwater, used water in the Reservoir/Fire Protection/Evaporation/Dust Control/Hydroelectric category for irrigation, continued to receive 27 mgd, reduced system losses and limited its irrigation to 2,500 gallons per acre per day, it would have more than enough water to meet its current water needs for agriculture,” Frankel wrote.

(Mahi Pono vice president Grant Nakama testified that the COVID-19 pandemic delayed the company’s planting schedule “because materials and supplies needed for planting were either delayed or became unavailable.” As a result, he said, the company had used less water than it had originally projected.)

The Sierra Club also asked the court to order the Land Board to require A&B/EMI to assess which of its diversion structures adversely affect native aquatic species, facilitate mosquito breeding, and mar natural beauty, and to then require the removal of any offending structures.

Defendants’ Reply

In their proposed decision and order, attorneys for the Land Board and DLNR argued that the board had enough in- formation in 2018 and 2019 to weigh the potential harm to native species against the benefits of diverting the 13 streams. They also noted that the Sierra Club provided no evidence that EMI diverts one of those streams, Puakea. The remaining 12 streams are all within the Huelo license area, which is covered by just one of the four revocable permits, they added.

The attorneys argued that it was reasonable for the Land Board to allow the continued diversion from those streams, since forbidding those diversions “might have meant that A&B would be forced to reopen diversions in the Ke‘anae and Nahiku areas that were previously closed.” (Mark Vaught, director of water resources for Mahi Pono, testified in the case that it gets most of its water from the 12 streams in the Huelo area that the Sierra Club is concerned with.)

The attorneys added that, consistent with advice from DLNR’s Division of Aquatic Resources (DAR), the Water Commission’s 2018 IIFS order “spread out the restoration of streams geographically. With the Huelo license area, the Huelo and Honopou streams were ordered to have their natural flow restored, and the Waikamoi stream was ordered to be restored to H90 status [which would provide 64 percent of median base flow].”

With regard to Parham’s assessment that the complete diversion of the 13 streams not included in the commission’s order would lead to significant habitat loss in their surrounding areas, the state’s attorneys noted that his report did not assert that the restoration of the streams was “necessary to the survival or sustainability of the populations of any native stream animals in East Maui.”

With regard to the Sierra Club’s list of tasks for the Land Board, the attorneys argued that the board “was not required to uncover every possible negative impact caused by every single diversion structure before approving the continued holdover of the RPs.”

“Obviously, the extent to which di- versions ‘mar natural beauty,’ if at all, is inherently subjective. Further, it is a matter of common sense that the reduction of stagnant water due to stream diversions is unlikely to significantly reduce mosquitopopulations in the area, when they are ubiquitous and can breed in any area of stagnant water,” they wrote.

They added that the Sierra Club failed to prove why the board should file a petition with the Water Commission to amend the IIFS for the 13 streams when “CWRM is already undergoing the process of reviewing all streams in Hawai‘i to prioritize them for amended IIFS” (emphasis in the original).

Attorneys for A&B and EMI added “the public trust doctrine cannot require the BLNR to undertake actions that are impossible, unreasonable or impracticable under the circumstances. Accordingly, to establish the standard of care imposed by the public trust doctrine, Plaintiff bears the burden of producing evidence to show that the specific actions it asserts are required are, among other things, reasonable and practicable in the context of a one-year revocable permit terminable upon 30 days’ notice.”

They also argued that the Sierra Club lacked standing to bring its case because they believed the group failed to prove that its members — who testified to regularly hiking the stream areas and swimming in them, among other things — suffered an actual threat or injury due to the Land Board’s actions, or that a favorable ruling would provide any relief.

The court had not made a decision by press time. 

— Teresa Dawson

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