In September, the Sierra Club of Hawaiʻi filed a motion in Environmental Court to sanction attorneys representing Alexander & Baldwin and East Maui Irrigation Company for providing the court with misleading information regarding the need for additional water from East Maui streams to fight fires that ravaged parts of the island in early August.
Based on the attorneys’ representations that the Maui Fire Department had requested more water be diverted into reservoirs owned by EMI co-owner Mahi Pono to help fight the fires, Environmental Court Judge Jeffrey Crabtree, beginning on August 9, repeatedly suspended his 31.5 million gallons a day cap on diversions from several East Maui streams.
The Sierra Club’s attorney, David Kimo Frankel, pointed out in the group’s filings that Mahi Pono vice president Grant Nakama admitted that the Fire Department had only asked to use the company’s trucks, not for more water. He also conceded that his decision to divert more water into the reservoirs was based on his belief that there may not have been enough water in them for firefighting at the time.
In the end, the additional water that was diverted never exceeded the 31.5 mgd cap. Frankel argued that A&B’s and EMI’s attorneys failed to investigate the companies’ claimed need for more water.
On October 23, Crabtree denied the Sierra Club’s motion without prejudice. In a written ruling on October 26, he explained that when A&B/EMI attorney Trisha Akagi asked for more water following an inquiry from the court, “the context was a serious ongoing emergency in Kula, with the added context of the worst fire emergency in Hawaiʻi history happening at the same time in Lahaina. … At the time, there was undoubtedly confusion, limited information, and quickly changing circumstances. All within the context of the horrific loss of life and destruction of property in Lahaina. There is no evidence in the record that it was known which helicopters or trucks were available at what times in what areas and could get how much water from whichever specific reservoir(s) were nearest the (multiple) brush fires. It is more likely that the most safety-conscious approach would be ‘until we have a better situational awareness, we need water in every reservoir which our equipment might need access to depending on where the fires are now and where they might spread to, and we need that water for as long as it may take before we can get the Kula fires under control.’”
Crabtree stated that there was nothing in the record that supported a finding that Mahi Pono, A&B, or Akagi acted out of self-interest. “To the contrary, Mahi Pono pumped ground water to help with the fires – thereby at least theoretically reducing the amount of additional stream diversions the court allowed,” he wrote.
“At worst, the court sees sincere efforts to save lives and property at the potential cost of taking more stream water than turned out was necessary. The fact that more stream water ended up being taken than was ever used does not mean the requests were frivolous or in bad faith. Imagine where we would be if lives or property could have been saved in Kula but were lost because not enough water was made available in the Kula reservoirs quickly enough,” he continued.
Although Crabtree denied the Sierra Club’s motion, he did want A&B and EMI to explain what they did with the extra water they diverted during the eight days that the cap was suspended. On three of those days, in particular, an average of 11 million more gallons a day was taken from East Maui streams than were taken on the other four days the cap was suspended.
He asked the companies to provide more information. “[T]here is legitimate question whether more water was diverted than was necessary, without good cause,” he wrote.
Although A&B/EMI objected to the requests, arguing that the court lacked the authority to make them, the companies answered them anyway. Their attorneys pointed out that even though the cap was temporarily suspended, A&B/EMI’s daily and monthly average diversions never reached 31.5 mgd.
The companies diverted extra water on August 10, 11, and 16 because of weather fluctuations, they stated. The also stressed that the amount of water diverted on August 10 (23.8 mgd), August 11 (29.2 mgd) and August 16 (29.7 mgd) “is not extraordinary in light of the amount of water required for diversified agriculture and the County of Maui. In August 2023, on a monthly average, diversified agriculture required 23.76 mgd. For that same time period, the County consumed, on a daily basis,at least 5.10 mgd for the Department of Water Supply and, on a monthly average, 0.77 mgd for the Kula Agricultural Park. Just these three uses consumed approximately 29.63 mgd,” they wrote, adding that an unknown amount of water was also used for fighting the files in Central and Upcountry Maui.
They argued that there was no evidence those uses were not reasonable or beneficial, and that “any implication in the court’s question that the water diverted during this time period was somehow ‘wasted’ is also unfounded.”
“If we assume, as Sierra Club often argues, that the entirety of the ‘Reservoir/Seepage/Fire Protection/Evaporation/Dust Control/Hydroelectric’ column is system losses, the amount of system losses for August 2023 was 9.39%. … This is well below the 22.7% system loss rate found reasonable by the Commission on Water Resource Management,” they continued.
They added that A&B/EMI don’t monitor reservoir levels daily and because water is constantly coming in and going out, they “can’t estimate the amount of water diverted from August 9-16 that is or may still remain in those reservoirs. Although, given the fact that, currently, Reservoir 81 is the only reservoir supplied by surface water with water in it, it is highly unlikely any of the surface water diverted during August 9-16, 2023 still remains in any of Mahi Pono’s reservoirs.”
— Teresa Dawson
For Further Reading
Also see the following related articles on our website, environment-hawaii.org:
• “Court Orders Reduction in Diversions Of Water from East Maui Streams,” July 2023;
• “East Maui Case Tests Commitments to Water Conservation, Fire Protection,” September 2023; and
• “Judge Finds A&B, EMI Failed to Prove East Maui Diversion Cap Needs Lifting,” and “Judge Decides Against Ordering Maui Fire Plan, Reservoir Lining,” October 2023.
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