East Maui Stream Flow Case Reopens; Parties Debate Evidentiary Standards

Having been pushed back a month from its previously scheduled time, the re-opened contested case hearing on amendments to the interim instream flow standards (IIFS) of some two dozen East Maui streams begins on February 6 at Maui Community College and is expected to conclude on the 10th.

The Commission on Water Resource Management decided last year to reopen the hearing after Alexander & Baldwin, Inc., announced it was closing its subsidiary Hawaiian Commercial & Sugar’s sugarcane plantation in December and transitioning those former cane fields to diversified agriculture.

HC&S later submitted to the commission a diversified agriculture plan — with an accompanying chart — that includes cattle ranching and dairy operations, bioenergy crops, an agricultural park, small diversified farms, and beverage orchards, among other things. Total estimated surface water needs, it claimed, amount to some 116 million gallons a day, which is tens of millions of gallons a day less than what it used for sugarcane.

The nonprofit Maui Tomorrow Foundation (MTF) and native Hawaiian East Maui residents represented by the Native Hawaiian Legal Corporation (NHLC) — all parties to the case — have argued that the chart and the company’s unsubstantiated calculation of water requirements for each proposed crop or use are insufficient bases for a commission decision on the IIFS, especially in light of the fact that a much higher evidentiary standard was applied to instream uses during the contested case hearing last year. Both entities suggest HC&S’s claimed per-acre water needs for diversified agriculture would result in an over-allocation that would far exceed actual need, and thereby violate the public trust doctrine.

In case filings submitted last month, NHLC attorneys Summer Sylva and Camille Kalama also pointed out that EMI’s system diverts water from more than 40 streams, while the IIFS case deals with only two dozen of them. The streams not included in the contested case, as well as A&B’s groundwater well in Central Maui, are all alternative sources of water that the companies could use before seeking to tap the streams that the NHLC’s clients rely on, the attorneys argued.

In its response, attorney David Schulmeister, representing HC&S, argued that the evidentiary standards MTF and NHLC sought to apply to the company’s proposed water uses were unnecessarily high, and “so stringent that it would undermine, rather than support, the obvious public interest in facilitating the transition of HC&S former sugar lands into continued agricultural use.”

“Water needs for offstream uses like the Diversified Agricultural Plan should not have to be proven with specificity of a degree that is unattainable absent significant investment in such uses, which businesses would be deterred from making given the exorbitant cost and delay associated with petitioning CWRM to amend the IIFS downward if the amended IIFS set in this proceeding do not account for A&B’s proposed offstream uses,” he wrote.

To show HC&S’s commitment to the plan, Schulmeister noted that the company was working this year toward an agreement with the Maui Cattle Co. to turn 4,000 acres of former sugar lands into pasture and had already begun fencing off areas, seeding them, and installing irrigation. Also this year, he continued, it planned to sell about 850 acres to the county for an agricultural park, establish 100 acres of oilseed orchards, and make other lands eligible for any utility request for proposal for renewable energy development, among other things.

Holdover Diversions

No one knows how long it will take hearing officer Lawrence Miike to issue his revised IIFS recommendations once the hearings this month conclude or how long it will take the Water Commission to act on them. In the meantime, HC&S is continuing to divert water from East Maui under a holdover, approved last December, of four expired/invalidated revocable permits issued by the state Board of Land and Natural Resources. In approving the holdover, the Land Board prohibited any waste or non-beneficial use of the water, but did not indicate how that would be monitored or enforced.

Sylva stated in an email, “Enforcement and implementation of the conditions to which these four judicially invalidated revocable permits are now subject are a real concern. But equally, if not more, troubling is how the Land Board continues to treat as ‘valid’ permits that the First Circuit Court ‘invalidated’ back in January [2016], or how it reasons that another one-year holdover of A&B’s uninterrupted use of unknown quantities of water from 33,000 acres of public trust ceded land without ever completing an EIS is consistent with the public trust doctrine.”

Land Board member Chris Yuen had pointed out that with the closure of HC&S, many of the most important streams for taro farming had been mostly, if not fully, restored, suggesting that should be good enough — for now — for East Maui residents. He added that, because so much of HC&S’s lands were state-designated Important Agricultural Lands (IAL), they should be provided an ample source of water. Sylva, however, saw the board’s decision as a lost opportunity to reverse the century-long status quo from diverted to undiverted streams.

“A&B has no immediate need and no concrete plan for surface water originating from East Maui,” she wrote. “Instead of making the most of this unprecedented turn of events in service of the public interest (e.g., stream science and biota research, bona fide watershed management, the execution of lawful permits/leases, comprehensive environmental reviews, etc.), the Land Board has conferred a facade of legitimacy to a permitting process that has been anything but.”

As for Yuen’s statement that water serving IAL should have some kind of constitutional protection, Sylva continued, “This concept has no basis in our law for a number of good reasons. First, it would allow streams to be drained even though ground water or alternative sources of water could/should be used to irrigate commercial agricultural lands.  It would also unfairly elevate the interests of large, commercial landowners over and above everyone else’s by declaring certain of their lands ‘important’ – a designation that already allows these powerful, moneyed interests to take advantage of a number of significant incentives and protections (e.g., grant assistance, tax incentives, reduced infrastructure requirements, state funding, etc.). These kinds of commercial ventures are not deserving of constitutional protection.

“The law requires our Land Board to be objective, proactive trustees who consider, protect, and advance public rights in the resource. That wasn’t done here.”

— Teresa Dawson