Above photo: Homes burned last month by the Kula fire in Upcountry, Maui. CREDIT: DLNR.
On September 15, Environmental Court Judge Jeffrey Crabtree will hold a hearing on the Sierra Club of Hawaiʻi’s August 17 motion to amend water permits held by Alexander & Baldwin and East Maui Irrigation. The motion asks the judge to require the companies to provide the Board of Land and Natural Resources with a fire protection plan and to line, within six months, at least one of their reservoirs.
The four long-held revocable permits, renewed by the Land Board last November, allow the companies to divert tens of millions of gallons of water a day from East Maui streams to Upcountry and Central Maui for agricultural and municipal purposes.
The Sierra Club’s motion, filed by attorney David Kimo Frankel, effectively asks the Land Board, A&B, and EMI to put up or shut up with regard to their commitment to ensuring there is enough water in reservoirs to fight fires.
At an August 15 press conference on the fires that devastated parts of West and Upcountry Maui, Governor Josh Green, addressing the media, stated: “People have been fighting against the release of water to fight fires. I’ll leave that to you to explore.”
Although Green did not specify what part or parts of Maui he was referring to, state attorneys have been in a years-long fight with the Sierra Club over the amount of water that is allowed to be diverted via the revocable permits. Some of that water is used to fight fires.
The Sierra Club has consistently pushed for diversions to be limited to what is actually used, so that the water isn’t wasted while sitting in leaky, unlined reservoirs.
In the Sierra Club’s motion, filed two days after Green’s statement, Frankel pointed out that since 2020, the Sierra Club has been trying to get the Land Board to require EMI and A&B to provide more information on the amount of water needed to fight fires.
In November 2020, in response to concerns raised by the Sierra Club, the Land Board ordered A&B and EMI to work with the Maui Fire Department to determine what its exact needs are, he wrote.
Alarmed by the scant information provided by A&B in response, he continued, “the Sierra Club filed a motion asking BLNR to fulfill its trust duties and require A&B to quantify how much water is needed for fire protection.
“BLNR refused.”
In its 2022 decision on a contested case over the permits, the Land Board acknowledged that the companies had failed to comply with the board’s requirement and noted that A&B’s quarterly reports on water use could include more detail on the need to retain water in reservoirs to fight fires. But, Frankel noted, the board did not require that A&B provide the necessary information immediately.
At one point, the state did try on its own to get more information on the fire department’s needs.
In an October 11, 2022, letter to then-Land Board chair Suzanne Case in response to her request for an estimate on the amount of water used to fight a brush fire that had arisen in Central Maui, the Maui Department of Fire and Public Safety demurred. It said that reservoirs owned by Mahi Pono (which co-owns EMI) are critical to the department’s ability to fight brush fires.
However, “[a]n estimate of our water usage during an emergency response depends on several different things, including — but not limited to — the size and location of the fire, the fuel load, proximity to other non-farm sources, weather conditions (wind speed and direction), and the time of day (helicopters do not assist in darkness for safety reasons). Most importantly, water usage is affected by the proximity of the fire relative to residences, property, and human life, which in an emergency situation, must be considered the highest priority. Given all of the above-mentioned variables, it would be exceedingly difficult to accurately estimate the amount of water necessary to bring the fire under control,” the department stated.
The following month, as the Land Board prepared to vote on whether to continue the water permits for another year, the Sierra Club asked that they be modified to include a condition requiring the company to provide to the Department of Land and Natural Resources by March 30, 2023, “a plan that describes the minimum requirements to fight fires in Central Maui. The plan shall describe the volume of water that needs to be available, the minimum depth of reservoirs that would be used, the minimum number of reservoirs that are needed, the maximum distance separating these reservoirs, and the identity of those reservoirs best suited for fire-fighting.”
“BLNR refused to include the new language,” the Sierra Club stated.
Writ Petition
On August 9, as fires continued to burn across Maui a day after a wind-whipped blaze tore through Lahaina, killing at least 115 people, state deputy attorneys general representing the Land Board filed a petition with the Hawaiʻi Supreme Court seeking to stay a June 16 order by Judge Crabtree that capped the amount of water A&B and EMI could take from East Maui streams to 31.5 million gallons a day.
The board, which last November set the cap at 40.49 mgd, also asked the high court to bar Judge Crabtree from altering the cap again and to order him to enter a final judgment in the case, so that the parties could appeal his decision.
“Central Maui has no water for fire reserve because [Crabtree] substituted his judgment for that of the agency. As a result, there was not enough permitted water to the battle the wildfires on Maui this morning,” deputy attorneys general Julie China, Danica Swenson, and Miranda Steed wrote in their petition on behalf of the Land Board.
During oral arguments before the Hawaiʻi Supreme Court on August 23, however, Maui deputy corporation counsel Mariana Löwy-Gerstmar put paid to the state’s claims when she testified that the 31.5 mgd cap — which assumes that some portion of a 7.5 mgd allocation to the county would be available to fight fires — did not hamper fire-fighting efforts last month.
Löwy-Gerstmar said that the county only uses an average of 4 mgd for Upcountry’s daily needs. About 1.5 mgd goes to the Kula agricultural park. The unused portion of the 7.5 mgd allocation goes into reservoirs and is available for firefighting.
“We have not exceeded any of that allocation for fire-fighting in Upcountry and Pulehu,” she said of the fires that were burning outside of West Maui. She added that water from Central Maui is not used for fire-fighting in West Maui.
“For this fire in particular, on August 8 and most of August 9, there as no possibility for any helicopter flying, so that would limit the amount of water that was used,” she continued, estimating that just 37,000 gallons of reservoir water was used by county firefighters between August 8 and 13.
The Sierra Club added in its filings that even if the county used five each of helicopters, tankers, type 1 engines, type 5 engines, and utility vehicles, it would still use no more than 720,000 gallons per day to fight a fire.
In addition to the water used by the county for fire-fighting, on August 9, “the Hawai‘i National Guard conducted 58 aerial water drops for a total of just over 100,000 gallons of water,” the Sierra Club noted.
“The limiting factor in fighting fires [outside of Lahaina] is the amount of equipment and personnel – not the amount of water available from East Maui streams,” it stated.
Its filing included a spreadsheet on reported water use showing that millions of gallons a day of diverted East Maui stream water goes unused.
Lining the reservoirs would allow less water to be diverted from our streams. It would also ensure that there is enough water to fight fires.”
Sierra Club of Hawaiʻi
“Unfortunately, much of this water just seeps into the ground. None of the reservoirs currently being used is lined. The Sierra Club has been pleading for years for these reservoirs to be lined. Lining the reservoirs would allow less water to be diverted from our streams. It would also ensure that there is enough water to fight fires,” it stated.
Using the state Commission on Water Resource Management’s estimate that 22.7 percent of the water diverted through EMI’s old plantation ditch is lost via seepage, leaks, evaporation, etc., hundreds of thousands of gallons to a few million gallons a day would still accumulate in reservoirs and be available for things like fire-fighting and dust control, based on data included in the Sierra Club’s spreadsheet.
During oral arguments, Justice Sabrina McKenna asked Löwy-Gerstmar, “Is it the county’s position it ever lacked water for firefighting because of the Environmental Court’s decision?”
“No,” Löwy-Gerstmar replied.
What’s more, according to a declaration to the court by Grant Nakama, Mahi Pono’s senior vice president of operations, any lack of water in its reservoirs last month — real or perceived — was due to a recognition of how leaky they are.
“On the evening of Tuesday, August 8, 2023, Mahi Pono personnel relayed to me that, in response to a request from the County of Maui Fire Department, they were using Mahi Pono water trucks to assist in fighting a fire that started near Pulehu Road. …
I believed that the level of water in Mahi Pono’s reservoirs was low, given Mahi Pono’s practice of bypassing reservoirs when practical to reduce seepage.
Grant Nakama, Mahi Pono Vice President
“At the time, I believed that the level of water in Mahi Pono’s reservoirs was low, given Mahi Pono’s practice of bypassing reservoirs when practical to reduce seepage. … Due to the severity of the winds and the fire, I was unsure that the amount of water in the reservoirs would be sufficient to support the Fire Department’s efforts, so I directed Mahi Pono staff to pump groundwater and bring additional water in through the ditch system,” he stated.
On August 24, the high court unanimously denied the state’s petition.
Motions to Modify
Just hours before the parties made their arguments before the Hawaiʻi Supreme Court, they were making similar arguments before Judge Crabtree at a hearing on a June 30 motion by A&B and EMI to raise the diversion cap back to 40.49 mgd.
Crabtree had not issued a decision by press time.
The companies argued that for the rest of the year, it will actually need to divert 41.32 mgd, including 2.2 mgd for “Reservoir, fire protection, evaporation, dust control and/or hydroelectric uses,” but would settle for the amount approved by the Land Board last year.
The companies say they need more water for some 230,000 orchard trees that Mahi Pono has purchased and is intending to plant on more than 1,500 acres in the third and fourth quarters of 2023.
The Sierra Club, however, argues that the companies’ “because I said so” evidence does not justify modifying the cap. It notes that there is plenty of groundwater and other surface water available.
“More importantly, it can use the water that just sits in reservoirs, seeping into the ground. The threat of fire is real, but Fire Department data proves that the quantity of water required is in the hundreds of thousands of gallons, not millions of gallons per day. The cap will force A&B and Mahi Pono to use water more efficiently,” Frankel wrote in the Sierra Club’s opposition to A&B’s motion to modify the permits.
In the Sierra Club’s own motion to modify the permits, it underscores the need to line Mahi Pono’s reservoirs.
“BLNR has taken no substantive steps to reduce seepage loss. … [T]he permits must be modified to properly address the threat posed by fires – as the Sierra Club has been requesting for years,” Frankel wrote.
— Teresa Dawson
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