On December 8, either the Environmental Court or the state Board of Land and Natural Resources will decide how — and how much — water will be diverted from East Maui streams to Central and Upcountry Maui.
The Land Division of the Department of Land and Natural Resources plans to request that the board approve a new revocable permit to replace the four permits held by Alexander & Baldwin and East Maui Irrigation Company.
The Land Board has been renewing or continuing those permits for decades, over objections from native Hawaiians and conservationists who believe that much of that water should be returned to their streams of origin.
While a significant amount of water has been returned to East Maui streams that support taro farming, the Sierra Club of Hawaiʻi is still fighting to end what it sees as the waste of water taken from some of the other streams covered by the revocable permits.
The group was able to convince the Environmental Court this year that the Land Board must hold a contested case hearing on its 2022 decision to continue the permits through 2023. The court also reduced the total amount of water that could be diverted under the permits from 40.49 million gallons a day allowed by the board to 31.5 mgd.
With the year almost up, and no contested case hearings scheduled, parties to the case have filed a flurry of motions and opposition memos with the court in the past month or so: the Sierra Club wants to make sure the Land Board doesn’t render the contested case over the revocable permits moot, A&B and EMI want the permits extended through March of next year (with a cap increase), and the attorneys for the Land Board oppose both ideas.
A hearing on motions by the Sierra Club and A&B/EMI is scheduled to be held at 2:00 p.m. on December 8 or at 3:00 p.m. if the Land Board has not yet rendered a decision on a revocable permit to the companies for 2024.
Permit Proposal
According to a draft of its December 8 staff submittal to the Land Board, the Land Division will be proposing a revocable permit that largely reflects what it envisions for the long-term water license that will eventually be offered via a public auction.
The proposed permit will cover only the diversion of East Maui water over the next year and will not include the 33,000 acres of state watershed lands surrounding EMI’s sugar plantation-era diversion system. Because a 1938 agreement between EMI and the territory of Hawaiʻi provided the company with a perpetual easement for its system, the division saw no need to include any state lands in the permit. The change will allow the DLNR’s Division of Forestry and Wildlife to manage those 33,000 acres for watershed protection.
The Land Division is also proposing to allocate water to A&B/EMI and the Maui Department of Water Supply separately. Currently, the allocation is to the companies with the understanding that some of that water is forwarded to Maui County for municipal and agricultural uses in Upcountry Maui.
The division is recommending a cap of about 22.7 mgd for A&B’s and EMI’s diversified agriculture, existing historical and non-agricultural uses, reservoir, fire protection, dust control, hydroelectric purposes, system losses, and other uses.
Under the division’s proposal, authority would be delegated to Land Board chair Dawn Chang to allow her to increase that cap to the extent the companies need more irrigation water for diversified agriculture at a rate of 2,500 gallons per acre per day.
The companies must provide supporting documentation for any requested increase by January 31 of next year.
For the county Department of Water Supply, the Land Division is proposing a cap of 4 mgd from the East Maui state-owned streams. An additional 0.7 mgd would be allowed for the county’s Kula Agricultural Park.
Those proposed new caps are based on the county’s recent water use and is significantly less than the 7.5 mgd that is currently diverted by A&B/EMI for the county (6 mgd to the DWS and 1.5 for the ag park).
The total amount that could be diverted under the new permit for the companies and the county would be 27.3975 mgd.
Cap Debate
The Sierra Club has stated in recent filings with the Environmental Court that the current court-imposed 31.5 mgd cap should be lowered to 30 mgd if the Land Board fails to make a decision on the Land Division’s proposal and the court decides to then extend the revocable permits’ expiration date to March 31, 2024. That’s slightly higher than what the Land Division has proposed.
A&B and EMI, on the other hand, filed a motion on November 15 to significantly raise the 31.5 mgd cap. The companies’ first attempt to do so failed, with judge Crabtree finding that they did not provide enough information to justify raising the cap to the 40.49 mgd that the Land Board had set in 2022.
The motion asks the court to increase the cap to 52.57 mgd to meet current and near-future needs, or, at least to 38 mgd to cover what the companies say are the current needs of the county (at the 7.5 mgd rate) and EMI co-owner Mahi Pono, which is growing diversified crops on former A&B lands.
The companies’ attorneys state that Mahi Pono has planted more crops since their first request to increase the cap and other crops have matured enough to require more water.
In June and July of this year, those crops required less than 19 mgd, but in the following two months, they needed around 24 mgd, according to a chart provided by Mahi Pono vice president Grant Nakama.
“The amount of water needed by the end of 2023 will increase significantly due to the additional 1,351 acres of crops Mahi Pono anticipates planting by the end of the year. Once planted, these additional crops will require an additional 6.88 mgd (1,351 acres x 5,089 gad).
“In 2024, A&B/EMI estimate that 44.27 mgd will be needed for diversified agriculture alone. The significant increase in the diversified agriculture water needs is a result of the increased maturity of Mahi Pono’s crops as well as the additional 2,401 acres of crops Mahi Pono anticipates planting in 2024,” the companies’ attorneys wrote.
When the companies last asked for a cap increase, judge Crabtree took issue with their claim that its orchard crops would need 5,089 gallons of water per acre per day, which far exceeds the 2,500 gallons per acre per day rate that has been used as the standard rate for diversified agriculture in Hawaiʻi.
This time, they pointed out that their industry expert, Steven Knell, “opines that citrus trees grown in central Maui require 5,322 gallons per acre per day.” Knell is a retired general manager of the 80,000-acre Oakdale Irrigation District in California’s Central Valley.
Crabtree is scheduled to hear the companies’ motion to raise the cap on December 8, along with the other motions.
—Teresa Dawson
Leave a Reply