Citing “Unconstitutional Status Quo,” Judge Sharply Curtails East Maui Water Diversion

Last week, Hawaii Environmental Court Judge Jeffrey Crabtree did what community water activists have spent years demanding: He cut East Maui Irrigation’s (EMI) water diversion almost in half. Crabtree modified a 2020 decision by the state Board of Land and Natural Resources (BLNR) that allowed EMI, owned jointly by Alexander & Baldwin and Mahi Pono, to divert some 45 million gallons of East Maui water per day (mgd) through a temporary water use permit. Instead, the judge’s July 30^th order immediately cut that allocation to 25 mgd, after finding that the BLNR, A&B, and Mahi Pono “offered nothing in the way of any options, plans or specifics” to otherwise modify EMI’s water diversion. Crabtree’s order will remain in effect until the BLNR holds a “contested hearing” on the temporary permit. The board’s failure to follow that legal process in November, 2020 is what triggered a legal action by the Hawai’i Sierra Club.

“The court will not allow the unconstitutional status quo to continue any longer,” Crabtree wrote, adding that his decision would “suffice until a better option emerges.”

“This is a big deal,” said Sierra Club attorney David Kimo Frankel in a press release from the organization. He called Crabtree’s decision one that “serves the legitimate water needs of the community and protects the health of these streams.”

A&B, Mahi Pono and the County of Maui (which joined EMI in some of the court pleadings) did not respond to requests for comment. A spokesman for the BLNR said the government body “doesn’t comment on pending board decisions.”

Now, before drought-suffering Upcountry water users freak out (and before A&B, Mahi Pono or Maui County tries to spin this water diversion modification into something alarming), Crabtree’s decision will not in any way curtail Upcountry water supply. EMI’s water take and use has been far below the permitted 45 mgd.

In its press release, the Sierra Club included a summary of EMI water reports from January 2020 through June 2021. [Editor’s Note: The Sierra Club combined two categories listed separately in the EMI report: a category called “system losses”—which amount to 22.7% of each monthly total—and a category reading “Reservoir/Fire Protection/Evaporation/Dust Control/Hydroelectric.” The Sierra Club’s new category is titled “System losses; seepage & evaporation: unaccounted for water.” Sierra Club explains its reason for doing so in a footnote at the bottom of the graphic]

 

As the chart indicates, this June, despite drought conditions, A&B/Mahi Pono diverted only 14.78 mgd from East Maui streams. Of that total, it supplied 3.82 mgd to one of three Upcountry reservoirs (Maui County maintains two other Upcountry reservoirs from non-East Maui water sources), to Kula Ag Park (1.01 mgd), and to Mahi Pono fields (4.34 mgd) and to “industrial uses” (1.1 mgd). That left 4.31 mgd in excess water, or “system losses” for the month.

According to the Sierra Club, the excess water is “directed into unlined reservoirs where it seeped into the ground” or evaporates.

When the total amount of water taken by A&B/Mahi Pono from East Maui streams is averaged over that 18-month period, it comes to 22.97 mgd per month. “System losses” averaged 15.99 mgd per month.

“Just as upcountry Maui residents are being asked to conserve water right now, the court recognized that Mahi Pono also must do all that it can to reduce waste in its own water usage,” said Sierra Club of Hawai’i director Marti Townsend.

The Back Story

Why was Crabtree’s order issued? The three-page Ruling and Order Modifying Permits outlines the reasons. From my vantage point in the cheap seats, one short answer is that the order was a stern rebuke to the hubris exhibited by the BLNR and EMI in not responding to the judge’s request for information following his decision on an administrative issue that prompted the legal action.

The path to Crabtree’s ruling is a bit convoluted, so bear with me. For years, A&B—before Mahi Pono ever existed—went before the Board of Land and Natural Resources to renew EMI’s annual temporary water use permit. Basically, A&B/EMI told the board how much water it needed for the coming year, and that request was granted. During a BLNR hearing on the permit on November 13, 2020, EMI asked to divert 45 mgd for the duration of its next temporary permit. At the time, the Sierra Club objected to the water amount requested and asked for a mandatory administrative process known as a “contested hearing.” The BLNR denied that request, then voted to approve the temporary permit.  That action—failing to schedule a contested hearing–triggered the Sierra Club’s trip to the Environmental Court.

When the matter finally came before the judge this spring, Crabtree’s job was not to rule on whether EMI deserved a temporary permit or deserved to take 45 mgd from East Maui streams, but on the legality of the BLNR’s denial of a “contested hearing.” Crabtree ultimately ruled that the permit was “defective” because the BLNR inappropriately denied the Sierra Club’s request for such a hearing. Crabtree was aware that simply invalidating the permit could lead to an absence of water altogether. He asked the parties for suggestions on how the permits could be “safely modified” to bring East Maui water to Maui County, Mahi Pono et al in the interim, until the BLNR held the contested hearing.

The BLNR didn’t provide any recommendations. Instead, its response involved a lot of suggestions about the appeals process and leaving the permits in place.

At a hearing on the matter July 7, according to the order, “the court denied all those requests…the court made clear…that there would be no immediate appeal or stay. The court explained that it could not leave the existing permits in place in light of recent authority from the Hawai’i Supreme Court, which held permits ‘cannot stand’ if issued without the required contest case hearing.”

And, he added, “The court also notes that A&B/EMI, like BLNR, did not offer any specifics on how to safely modify the permits…”

On the other hand, Crabtree wrote, “The Sierra Club was the only party which offered the court concrete and specific options and support for how to modify the defective permits and not leave a vacuum until BLNR conducts a contested case hearing.”

The judge made it clear that he would modify his 25 mgd order “if necessary.” But for now, EMI is limited to using, well, pretty much close to the amount of water it’s actually using, according to the reports cited by the Sierra Club.

How does this decision impact EMI’s recently released Final Environmental Impact Statement (FEIS)? In that document, EMI asks the BLNR for a 30-year water lease allowing it to divert 92.32 mgd, an amount far exceeding the 45 mgd that the Environment Court order just curtailed.

In an interview, attorney David Frankel surmised that the contested case hearing will be held long before the multi-step process of granting a 30-year water lease to EMI is concluded. “This order has actually limited the amount of water that can be taken out. There’s a big incentive on EMI’s part to have the contested case conducted expeditiously.”

He added that the licensing process will run longer, and possibly even longer still “because the lease will probably trigger some sort of contested case.”

Whatever the outcome, the days of EMI’s unchallenged water diversions from East Maui streams may be at an end.

“Community members have been testifying to the BLNR for years about the damage diversions do to our streams,” said Maui water expert Lucienne de Naie, who also chairs the Sierra Club’s Maui Group. “These streams often run dry in sections, putrid puddles breed mosquitoes, old pipes and other debris litter the stream banks, and the native stream species do not have enough water to thrive in. And all of us who live in East Maui rely on this water…”