Water Permittees To Contribute Funds For East Maui Watershed Management
State forestry and wildlife managers will finally receive funds from the two companies that for years have been diverting tens of millions of gallons of water a day from East Maui watersheds to other parts of the island for agricultural and municipal purposes.
On June 23, the state Board of Land and Natural Resources voted to require Alexander & Baldwin, Inc. and East Maui Irrigation Company, Ltd., to pay nearly $140,000 a year in funds or in-kind services for watershed management activities.
The two companies together have for decades held four water use permits that allow them to divert the water via an old plantation-era system. They are close to reaching their goal of securing a long-term water lease, having completed an environmental impact statement and with the state Commission on Water Resource Management having completed its studies on how much water should remain in the streams. In the meantime, the companies have annually received Land Board approval to continue their permits.
When the board last approved the permits, in November 2022, it imposed a June 30, 2023, deadline for the Department of Land and Natural Resources’ Land Division to come up with a watershed management fee and/or watershed-related requirements for the permittees to implement during the permit period.
The DLNR’s Division of Forestry and Wildlife prepared an estimate of the annual management costs for the 50,249-acre portion of the East Maui watershed that provides the diverted water. That cost came to just under $2 million.
Water Commission staff estimated that the total capacity of EMI’s diversion system was 450 million gallons a day. The amount the Land Board allowed A&B and EMI to divert under the permits approved last year was 40.49 mgd, nearly 9 percent of the system’s capacity.
Based on that, the Land Division determined that the companies should pay $179,266, which is about nine percent of the annual estimated watershed management costs.
After the Land Division had prepared its recommendation to the board, Environmental Court Judge Jeffrey Crabtree issued an order in a case brought by the Sierra Club of Hawaiʻi seeking the invalidation of those permits and an order that the Land Board hold the contested case hearing on them that the group had asked for back in November.
The group has repeatedly taken the Land Board to court over the permits, arguing that they allow too much water to be diverted.
Although Judge Crabtree upheld the current permits, not wanting to create a legal vacuum, he ordered that the total diversion amount be capped at 31.5 mgd, and that the Land Board hold a contested case hearing.
Based on that lower diversion cap, the Land Divisionʻs Ian Hirokawa told the Land Board, the companies would pay $139,463.
A&B executive vice president Meredith Ching testified that she agreed to the Land Division’s approach, but added that the court decision was “a curve ball.”
Given current litigation, Maui County’s burgeoning East Maui Community Water Authority, and the possibility that a lease may soon be offered, board member Vernon Char recommended that the board “come up with some kind of game plan so we’re not going year after year through these abortive RP processes.”
“The staff and chair have been meeting to do exactly that. We know we’re only going to set ourselves up for litigation if we don’t move in the direction of a lease,” Land Board chair and DLNR director Dawn Chang replied.
The board ultimately voted to require the companies to pay the lower amount of $139,463.
Kīpahulu Management, Mauka and Makai
On June 23, the Land Board unanimously approved a request by the DLNR’s Division of Aquatic Resources to hold public hearings on proposed administrative rules establishing the Kīpahulu community-based subsistence fishing area (CBSFA).
Decades in the making, the proposed area would establish strict limits on the take of ʻopihi, lobster, crab and finfish from state waters out to the 60-meter depth line from Kalepa gulch to ʻOheʻo gulch in East Maui.
At a May 26 briefing on the proposal, Kamalei Pico, executive director of Kīpahlu ʻOhana, Inc., explained that the group’s effort to protect area’s resources, as well as traditional, subsistence fishing practices, began in 1995. She noted that a 2014 study found that if fishing access were to increase without additional management, Kīpahulu could experience rapid declines in biomass.
“Kīpahulu is an extensive fishing area… Fishing is a way of life,” she said, describing how the fishing for akule is a community event, where fishers join their nets together.
She noted that many of the area’s kupuna have passed away while the CBSFA plan developed. “There is an urgency to protect what we have, while we have it,” she said.
Under the rules, Kukui Bay would be a no-take area, but would include an area for fishers to safely access the waters beyond. There would also be an ʻopihi no-take area.
The CBSFA is not a closed area, but is “open to pono harvest,” she said, adding, “We want to be able to fish forever and this is how we plan to achieve that.”
The rules would set a number of daily bag limits: one omilu, two kala, 40 ʻopihi, two lobster, and two spotted reef crab per person. There would also be a total finish bag limit of 15, although akule and introduced or invasive fish species would not count toward that total.
There would also be maximum and/or minimum size limits for ʻopihi, moi, and kole, as well as new closed seasons for moi and lobster.
Fishing gear would also be limited: Surround nets with a 2 3/4-inch mesh would only be allowed for akule and invasive species harvesting. No bag net fishing and no nets with a stretched mesh of less than three inches would be allowed.
To ensure pole fishers did not crowd each the out, poles would be limited to two per person at once, with one line each.
SCUBA would not be used to take marine life except when permitted by the DLNR for surround-net fishing for akule and introduced or invasive species.
Night fishing — from 30 minutes after sunset to 30 minutes before sunrise — would be prohibited.
Board member Kaiwi Yoon praised the community’s effort, especially the involvement of so many young people. “The more of these that pop up … the more success stories I hear about ʻāina,” he said.
Board chair Dawn Chang added that her department needs the help of communities to manage marine resources. “We cannot steward all these resources. … When communities step up and are willing to work with us, I have great aloha for that. You are going to be the best ones to manage it. … You’re willing to sacrifice and say, ‘We’re willing to take less and ensure future generations have enough,’” she said.
At the Land Board’s June 23 meeting, DAR education specialist for Maui Adam Wong said that after public hearings — one in Hana and one via Zoom to allow for statewide participation — the rules would be brought back for approval in October.
Forest Reserve Plan
On July 14, the Land Board approved a 10-year management plan for the Kīpahulu Forest Reserve in East Maui. The reserve, made up of four non-contiguous tracts of land, encompasses a total of nearly 2,400 acres.
Unlike the CBSFA rules, the plan received little community feedback.
When board chair Chang expressed concern about that, Maui DOFAW district manager Scott Fretz suggested that might be because the forest reserve is not very accessible.
DOFAW biologist Jan Pali, who drafted the plan, added that the division’s website where people can view and comment on the plan got a lot of views, just not many comments.
Chang lamented that the plan gave little attention to cultural concerns. She said she wanted to see some kind of cultural goals to provide access, protect native species used for gathering, etc. Board members Karen Ono and Doreen Canto said they had some of the same concerns.
Fretz said his division could incorporate their concerns into their work going forward and added, “Arguably, what we’re proposing to do will enhance traditional and customary practices.” The plan’s goals include protecting native ecosystems and providing public access.
A few members of the public testified against the plan, specifically its support of mosquito control. Although the plan does not include any specific plans or methods to achieve this, Tina Lia testified that she was opposed to the release of lab-infected mosquitoes while her lawsuit seeking an injunction is pending. Lia filed a complaint in Environmental Court in May to force the preparation of an environmental impact statement for a plan to release Wolbachia-infected male mosquitoes into East Maui forests to suppress the prevalence of avian malaria and protect critically endangered birds. (See our cover story.)
Lia also raised concerns about efforts to genetically engineer mosquitoes for release into the wild.
“Please honor the [Hawaiʻi Environmental Policy Act] process, protect the ʻāina [and] stop the biopesticide release in East Maui,” she said.
Chang then asked Lia if she had read the plan, which did not include any references to what Lia was talking about.
“There is mosquito control in that plan. … Did you read the plan?” Lia replied.
“I’m the director. … I approved the plan,” Chang said.
To which Lia snapped, “You work for me.”
“Excuse me?” Chang asked.
“You work for the public,” Lia replied.
Chang then asked Lia if she was opposed to the forest reserve plan.
“I’m opposed to the mosquito release referenced in the plan, so yes, I am opposed,” Lia said.
Another testifier, Robbin Lee Hill, admitted that she had not read the entire plan, but asserted that the Land Board was being duped, that excrement was being “shoved down your throat as some plan and care of the bird.”
“I am an actual expert in terms of being very well studied and we contacted with top scientists and some of the deepest level military intel on what this biological, genetically altered modified mosquito is.” [Note: the mosquitoes to be released are not genetically modified.]
“I’m going to disclose some information,” she announced, adding that she had addressed the nation of Hawaiʻi and citizens of Florida about this.
The mosquitoes are weapons of massive destruction — “biological warfare … under the disguise of mosquitoes with drones” — funded by the Department of Defense and the Bill and Melida Gates Foundation, she claimed.
Chang interrupted, “Thank you. Your three minutes are up.”
“Well, you’ve been warned,” Hill replied.
After an executive session, the board voted to approve the plan and to allow Chang to provide her staff with direction on cultural components.
Before the vote, however, Yoon lambasted the testimony by Lia and Hill as being “combative, threatening and abrasive.”
“It’s unnecessary for anyone to say who they’re working for or we’ve been fed soluble excrement or that we’ve been warned. … Pre-contact we had a symbiotic, hard-working, nurturing people with a healthy environment. And you know where we are today? We are the endangered species capital of the world with a tremendous loss of biodiversity and native populations. So to hear these very threatening and combative words hurt me personally and professionally, and I don’t think we get anywhere as a society.”
At this point, Lia held up a handwritten note reading, “conflicts of interest” to her computer camera.
Yoon pressed on, “As people with aloha who profess to love ʻāina, if you understood ʻāina and that word, you can’t, shouldn’t, wouldn’t want to talk that way to another human being.”
— Teresa Dawson
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