Closing arguments brought Sierra Club’s contested case hearing before the Board of Land and Natural Resources [BLNR] to a close Wednesday morning. Sierra Club wants the Board to hold East Maui Irrigation’s [EMI] revocable East Maui water permits to a daily diversion rate of 25 million gallons a day [mgd] of water in 2022, among other conditions. EMI, owned by Alexander & Baldwin/Mahi Pono, wants 40 mgd. The BLNR approved a 45 mgd diversion rate for the EMI permits in 2021, which sent Sierra Club to court. Last summer, a judge cut that amount after finding that EMI, A&B and Mahi Pono had offered “nothing in the way of any options, plans or specifics” to justify that diversion. There’s more on all of this in my December 14th story.
This week Sierra Club attorney David Frankel and A&B/EMI attorney David Schulmeister spent two days in situations that, at times, I don’t think they anticipated. Let me just say that, like the topic of this hearing, witnesses can be fluid.
If you don’t need the water, let it be
Monday’s testimony started off with a bang. A big one. Kicking off the Sierra Club’s roster of witnesses was Kaleo Manuel, Deputy Director of the state Commission on Water Resource Management [CWRM]. Now CWRM (pronounced “C-Worm” by insiders) is the big dog when it comes to setting stream flow standards in East Maui and elsewhere. The BLNR and its chair, Suzanne Case, have bowed before CWRM rulings and its recommendation when making decisions about EMI’s revocable permits.
So, I expected a lot of official posturing when Frankel asked Manuel about a 2020 BLNR staff submittal, with contributions from CWRM. It recommended that EMI submit a plan detailing the improvements it planned to make to its water delivery system to, among other things, “minimize leakage and waste.” The report was due June 30, 2021.
Frankel asked Manuel for his opinion of the one-page upgrade plan that EMI delivered. “Does the plan give you sufficient information to determine whether Mahi Pono has and will be sufficiently reducing system losses?”
Manuel replied that although steps had been outlined, he would have liked to know “at minimum, time frame of when improvements are going to be made, cost, and who’s responsible for those improvements.”
He added, “One of the things that’s not in it is any discussion about the reservoirs, which as you know, play an active role in the irrigation system. Most of it focuses on irrigation system lines. At a minimum, those would help me understand whether or not those are being done prior to approval of any lease.”
Those who read about the first week of this hearing may recall that the nine Mahi Pono reservoirs currently used to store excess water are neither lined, nor have the capacity for the amount of excess East Maui stream water coming into the system each month—even at its current court-ordered limit of 25 mgd. Mahi Pono CEO Ceil Howe acknowledged the surplus in his testimony last week, explaining that it went to “recharge” the underlying aquifer.
Frankel quoted from the BLNR staff report: “’The total system losses west of Maliko Gulch are currently higher than the [CWRM-accepted] 22.7% rate, but they [EMI] argue that the water is not being irretrievably ‘lost,’ or ‘lost’ at all, since it is being returned to the underlying aquifer which is the source for the brackish water wells that supplement the current and future irrigation needs of the Mahi Pono farm plan.’”
Frankel asked Manuel, “Is draining streams dry and having that water then seep into the ground a reasonable and beneficial use of water?”
“No,” Manuel responded. “That’s not the most efficient use of water, and it requires that balance for public interest…If you don’t use the water or need that water, it should stay in its natural state…in stream or aquifer, and then if it is needed for off-stream use, then that should be justified as reasonable and beneficial.”
Frankel had no more questions. Why would he? It was a direct hit.
Attorney Schulmeister attempted damage control during his cross-examination by suggesting that the improvements the BLNR staff wanted were related to A&B/Mahi Pono’s pursuit of a permanent 30-year water lease, and not the current revocable permits. But Manuel was having none of it. He said the intent of the recommendation was to “prevent waste and system losses as much as possible. I think that is the intent, whether long or short term.”
It wouldn’t be the Schulmeister’s last misstep that day.
Whose witness was he?
That would come during his cross-examination of Sierra Club witness, longtime research biologist Michael Kido. Kido’s pre-trial statement outlined his belief that—put simply–EMI’s diversions have harmed East Maui stream ecology. But, minutes into his testimony, Kido suddenly pivoted, saying that he had been “encouraged” by Mahi Pono CEO Howe’s testimony the week before. He liked Howe’s “description of how Mahi Pono operates. I was quite pleased at the crop selection—ulu (breadfruit) was on the list, and they are doing it very scientifically. They have a really good idea of how much water they want to use.” Kido went on. “With that in place, I think we’re on the way to understanding how much water they’re going to responsibly need to fully plant that landscape. So, I think we should support that, I think Maui needs diversified models like that one.”
I would have loved to have seen the looks on various participants’ faces after Kido finished, but that’s impossible. BLNR chair Suzanne Case, who is also the hearing officer of this proceeding, prohibited livestreaming. Unless you flew to Honolulu to watch a video monitor in a public hearing room, the only recourse was an audio recording of each day’s session, (with weird transcriptions added Wednesday to the BLNR website, at the bottom of the hearing page). Each day, Case mentioned the number of people in the public hearing room. Last week’s total: 2; this week’s attendance: 0 (because the interested parties are here on Maui, Chair Case, and, because of your ruling, unable to watch).
If I were David Schulmeister, I would have thanked Kido and stopped right there. But the attorney, who has spent some two decades fronting A&B water battles, inexplicably decided to proceed with questions intended to tarnish a witness who had just handed him an unexpected bouquet of Mahi Pono praise.
A “unique” and “complex” stream system
What transpired alternately damaged both sides’ arguments, but in the process of his testimony, Michael Kido emerged to me as one of the hearing’s most interesting witnesses. He spoke of his fascination with East Maui during his more than 100 visits over a 50-60 year period. “There aren’t many locations with this kind of stream system in the state,” he said. “This section of Haleakala is really unique, how streams come down from 8,000 feet, with a lot of waterfalls in between. It’s a really complex environment.”
Kido described a “plantation system” that “basically took all the water they could” by building a diversion system that “is probably the most effective one I’ve seen in the state. It’s designed to take all the water it can, and I think the [Mahi Pono] farming operation is finding out that there’s just too much volume in there, so that needs to be scaled back.”
Kido also spoke out about leakage, in a non-responsive answer to a question about competing factors to stream restoration. “[Leakage is] really important. If you’re going to take the water out, you need to be sure your system isn’t leaking…that really needs to be controlled.”
He also had opinions about reservoirs that Schulmeister couldn’t have found helpful. “That’s the old plantation style, take the water, put it in a reservoir, hold it. A reservoir is a bad idea. Lots of loss, water standing there for a long time. There’s really no reason to do that, but in the meantime, because there’s so much flowing out of that diversion system, there needs to be some kind of holding capacity in the interim, so I don’t think you can get rid of all the reservoirs immediately. Try to phase them out.”
He didn’t think much about using groundwater from aquifers for irrigation either. “Groundwater should always be saved for drinking. I don’t think you should ever use groundwater for irrigation. As the climate gets drier, we’re going to need that groundwater to supply drinking water to the population, so I wouldn’t touch that.”
At this point it was clear that Kido wasn’t going to play into either EMI or Sierra Club’s narrative; he was just going to tell the truth as he saw it. And his truth made a lot of sense.
“We do not know how these systems operate ecologically”
Although CWRM is in the process of evaluating another group of streams that have been proposed for restoration, Kido didn’t care for the process. He said that he’d read in one state report “that they can’t save all the streams, so they’ll save some of them. I disagree…We just do not know how these systems operate ecologically. That needs to be known to make the best judgment about what streams to restore.”
Kido said he thought the whole East Maui stream system needed to be studied before any intelligent assessments could be made. “In East Maui, where the streams have been diverted so drastically for so many years, it’s difficult to say what is normal anymore in that system,” he told Schulmeister, “Somebody needs to go look at these streams from the mountain to the sea and determine what population assemblages are, what species are where, that kind of thing. Then, based upon that, I think we could come up with some conclusion about what streams are the best and have the best potential to be restored.”
Schulmeister tried to return to his line of questioning, which involved trying to pit Kido’s “observational approach,” which the biologist describes as “getting in the stream,” with “modeling” approaches by others, such as state hydrologist (and previous witness) Ayron Strauch. “I don’t criticize, I have a different approach,” Kido deflected. When Schulmeister brought up Kido’s disagreement during another court trial with Strauch’s statement that diversions didn’t significantly impact native species, Kido countered, “Ayron rescinded that testimony and said that’s not true based on the new data they collected. I was happy he did that, it was the honest thing to do, because they have better data now.”
The attorney kept pressing Kido about his “labor and time-consuming” observational approach, but it had no real effect. And after he pretty much gave up, after almost an hour of questioning, Suzanne Case took over with questions of her own.
“Did you read the 2018 CWRM decision?,” she asked Kido, who couldn’t remember. “Are you aware that in that decision the commissioners did weigh a lot of the questions you are asking?”
“I would hope so,” Kido responded.
“What you’re describing is the best possible data versus the best available data,” Case continued. “Are decisions supposed to be made on the best available information?”
Kido replied, “If I was a decision maker, and I was at that juncture, I would send guys up there to look, because I really don’t know if that’s right or not.”
And with that, Case was done as well.
Water primer
Maui County’s only witness was Tony Linder, a water treatment plant division manager, who described Maui’s upcountry water system. He detailed how EMI water was used by the various systems. It was educational, but not particularly pertinent to Frankel’s main arguments during the hearing, which involved the excess water EMI was diverting and not using, not the water supplied to the county.
Witnesses Lucienne de Naie and longtime East Maui resident Lurlyn Scott were questioned for about a minute each, without adding much to the attorneys’ overall arguments either.
On Tuesday, Frankel poked unsuccessfully for a bit at Dalton Beauprez of the Oahu-based Wilson Okamoto firm, who led the process of drafting EMI’s Final Environmental Impact Statement for its 30-year water lease. Then Schulmeister did some poking of his own during his cross-examination of Sierra Club of Hawaii director Wayne Tanaka.
At least we’re not Red Hill
Schulmeister wanted to talk about Sierra Club’s contention that Mahi Pono is wasting East Maui stream water because its system losses exceed the CWRM rate of 22.7%. Schulmeister’s overall thesis was: That rate worked when EMI was diverting more than 100 mgd from East Maui. Now that it was taking much less water, there was much more evaporation.
After a convoluted series of questions with complicated volume/exposed surface rate/evaporation ratio equations that went nowhere, Schulmeister cut to the chase. “You can have a higher rate of system loss for a lower amount of water diverted, but actually you could be taking less water from the streams.”
Tanaka wasn’t biting. “What’s important is that water taken from the stream be used for reasonable beneficial uses and not wasted.”
“But the current projected amount of water to be taken from the streams is multitudes less than what was taken before,” Schulmeister persisted.
Uncharacteristically, Case stepped in to stop the A&B lawyer’s questioning, saying that the subject had been covered at trial.
But she had a question for Tanaka. “What about the ability to fight fires?” she asked, mentioning a Sierra Club suggestion to line and/or cover reservoirs to prevent evaporation and seepage. “How do you make water available in fighting fires? By rolling back the top?”
“I don’t think we even know how much water needs to be available for firefighting. It was a condition the Board imposed that wasn’t fulfilled [by Mahi Pono],” Tanaka responded. “Once you know that, you could figure out what reservoirs to cover and how much water was needed.”
Schulmeister then came back with a timely, though preposterous comparison. “I think the Sierra Club is active in trying to protect aquifers on Oahu from contamination at Red Hill. Does surface water from East Maui that seeps into Central Maui aquifers harm those aquifers?”
Tanaka’s big concession to the “at least we’re not putting jet fuel into the aquifer argument”: “Water isn’t as bad as fuel.”
And with Tanaka’s testimony at an end, the hearing concluded for the day.
A new alliance?
I think the BLNR is in a bit of a pickle. Its previous tendency has been to approve anything requested by A&B and, by association, Mahi Pono. But this hearing revealed that other state officials may also think there’s a problem with EMI’s current inability or refusal to account for its overuse of East Maui stream water. Or to answer previous BLNR requests, such as providing a plan for how much water is needed for firefighting. It puts the Board in the uncomfortable position of perhaps siding with Sierra Club, the perennial thorn in its side.
The Sierra Club was one of the first organizations to raise the alarm about potential public and environmental harm from the Navy’s Red Hill fuel tanks. For years, those concerns were similarly ignored (and also subject to a Sierra Club contested case) by another state organization, the Department of Health. That persisted until the recent spate of well contaminations. Now the Sierra Club and DOH find themselves on the same team. As Frankel put it during his final questioning of Tanaka, “I hope that’s the case in this one as well.”
NEXT: A review of closing arguments
