On August 13, in accordance with a May 28 ruling by the 1st Circuit Court, the Board of Land and Natural Resources finally granted the Sierra Club of Hawaiʻi’s request for a contested case hearing on permits that would allow Alexander & Baldwin and the East Maui Irrigation Co. to divert East Maui stream water for agricultural and domestic uses through the end of next year.
The action came weeks after 1st Circuit Judge Jeffrey Crabtree cut the amount of water the companies could divert, pending the conclusion of the contested case hearing, from the 45 million gallons a day (mgd) allowed by permits approved by the Land Board in 2020 to just 25 mgd, which is closer to what is actually being used.
For years, the Sierra Club has objected — at both the Land Board meetings and in court — to what it saw as the board’s over-allocation of East Maui stream water to A&B and EMI. While a 2018 Commission on Water Resource Management decision amending the interim instream flow standards of about two dozen of the diverted streams resulted in substantial restoration of natural flows, it did not include any protection for a dozen other streams in the Huelo area.
The Sierra Club has sought to not only have these streams protected, as well, but to get A&B/EMI to take better care of the watershed that feeds them.
At the board’s August 13 meeting, the Department of Land and Natural Resources’ Land Division had attempted to limit the scope of the contested case hearing “to only address evidence and arguments which were not or could not have been brought before the court in the direct action or the CWRM 2018 decision.”
Attorney David Kimo Frankel, representing the Sierra Club, argued that such a restriction would violate the law and the organization’s due process rights. It would also preclude necessary evidence, such as the Water Commission’s 2018 decision, from being submitted.
“There is no need to limit the scope. If we wanted to drag things out, we wouldn’t have submitted a written petition [for a contested case]. We’ve been begging [deputy attorney general] Linda Chow to put this on or a related item for many weeks now,” Frankel said, adding that he didn’t think the hearing would last more than five days.
In any case, he said the Sierra Club’s primary focus during the hearings will be to address the lack of protection for the dozen streams in the Huelo area that have no meaningful interim instream flow standards and the degree to which A&B and EMI are wasting the water they are diverting.
“It is really a problem when more than half of the water that’s taken is wasted. And it just simply is not used and that needs to stop,” Frankel said.
Frankel said the Sierra Club also believes that the companies should be paying the DLNR to help deal with the invasive species that are a problem in the revocable permit area.
After holding an executive session, the board voted unanimously to grant the Sierra Club’s request for a contested case hearing on the remainder of the 2021 revocable permits and their continuation through the end of 2022.
Board member Doreen Canto said in her motion to approve the hearing that it was the intent of the board that the contested case hearing not duplicate matters decided at the trial or the 2018 CWRM decision.
The board voted to have the hearing’s scope be determined by Land Board chair Suzanne Case and the hearing officer, authorized Case to select the hearing officer, and urged her to serve in that role.
On August 23, Judge Crabtree issued his Findings of Fact, Conclusions of Law, and Decision and Order in the lawsuit the Sierra Club had filed regarding these permits.
The order stayed his May 28 interim decision to vacate A&B/EMI’s permits for 2021, and reiterated his earlier decision requiring the Land Board to hold a contested case hearing as soon as practicable.
He chose to retain limited jurisdiction to further modify the existing permits if necessary. His jurisdiction would last until a further order from the court or until a decision in the contested case hearing is made.
“If it appears to any party that the court’s modification may or is leading to any shortage for the county, for Mahi Pono [the current owner of most former A&B land] or for other recognized beneficiaries, that party may immediately contact the court so that an expedited process can be set to hear and address any problems immediately,” he wrote.
On August 31, A&B/EMI issued a Final Environmental Impact Statement for the long-term water lease for the four license areas of Nahiku, Keʻanae, Honomanu, and Huelo that it has long been seeking. The lease, if won at a public auction, would end the annual permit renewals that have gone on for decades.
According to a DLNR press release, the DLNR’s Land Division expects the Land Board to consider whether to accept the FEIS on September 24.
(For more background on this, see our November 2020, and February, May and June 2021 New & Noteworthy items, as well as our October 2020 story, “Court Holds Final Arguments in Case Over Stream Diversions in East Maui.”)
— Teresa Dawson