Board Denies Contested Case
On Permits for East Maui Water
On December 14, the Board of Land and Natural Resources denied a request by the Sierra Club of Hawai‘i for a contested case hearing on the renewal of four permits that allow Alexander & Baldwin, Inc. (A&B) and its subsidiary, East Maui Irrigation Company, to divert tens of millions of gallons of water a day (mgd) from East Maui to agricultural lessees in Central Maui and to the county Department of Water Supply’s Upcountry system.
At the board’s November 9 meeting, the group had urged the board to impose stricter conditions on the permits to ensure that the company was meeting its obligations to not waste water, to clear junk from the permit areas, and to take steps to allow stream animals to migrate.
Sierra Club representative and East Maui resident Lucienne de Naie had testified that she had seen first-hand evidence that the companies had failed to comply with previous permit terms imposed by the board. The group also presented photos supporting her claims.
The board chose, instead, to approve the permits on the condition that a stakeholder advisory group be created to facilitate discussion of permit compliance over the next year. The group would have included representatives from the Office of Hawaiian Affairs, the Native Hawaiian Legal Corporation, the Maui Farm Bureau, A&B, and the county, but not the Sierra Club.
In defending the Sierra Club’s request for a contested case, attorney David Kimo Frankel told the board last month that it didn’t have enough information to properly decide whether to continue the permits for another year.
“While A&B says it is taking no more than 20-25 mgd, no one knows how much it will take next year,” he said. A&B representatives had informed the board in November that it was working on a deal with a California company that was interested in taking over and farming nearly all of A&B’s agricultural lands in Central Maui.
Frankel also noted that the permits would appear to allow unlimited diversions from a number of East Maui streams that were not part of a recent decision by the Commission on Water Resource Management on new minimum stream flow requirements.
Frankel argued that the board could require A&B to install flow meters to give the board the data it needs to determine how much water should be diverted.
Board member Stanley Roehrig seemed open to the idea, but told Frankel that the board didn’t need to convene a contested case hearing just to get meters installed. And Suzanne Case, who chairs both the Land Board and Water Commission, questioned Frankel about why the Sierra Club’s concerns couldn’t be addressed in the environmental impact statement A&B is preparing for a long-term water lease.
“Because it should be done now,” he replied.
When Case pointed out that the permit conditions would only be applicable for another year (compared to those for the lease, which could span decades), Frankel countered, “these one-year things have gone on since 1985.” (A&B vice president Meredith Ching told the board in November that the company will likely not be able to secure a long-term lease for at least another year.) To avert the need for a contested case, Roehrig asked Frankel if the group would withdraw its request if the Land Board required meters to be installed. “It’s small potatoes. … If you want to make us go lift heavy weights for the next year, everybody’s going to suffer,” Roehrig told Frankel.
“The point of a contested case hearing is not to delay things, not to make everybody’s life miserable,” Frankel replied. That being said, “we need to know how much water is going to be taken from the streams for the next year. … What are the alternative sources? What are the impacts? Aren’t these reasonable questions that should be answered?” Frankel asked.
Board member Chris Yuen asked whether the Sierra Club’s request was limited to those streams that were not included in the Water Commission’s June decision on interim instream flow standards (IIFS).
No, Frankel replied, but added that it would be reasonable for the board to have a contested case hearing on the license area that included those streams.
He added that with regard to the two dozen or so streams for which the Water Commission has recently reset the IIFS, the Land Board must still make its own determi- nation of whether or not it’s appropriate for A&B to divert water out of East Maui.
“They cannot take water out [if it] adversely affects the rights of others. …That’s the law,” he said.
Case noted that the Water Commission took into account the rights of East Maui water users when deciding how much water should remain in the streams.
Frankel countered that the commission did not consider whether “there’s a bunch of garbage in the area,” or direct A&B to modify its diversions so that they don’t interfere with the migration of aquatic species.
“The Water Commission, I think, has been hesitant to do anything on those structures because their focus is on quantities of flow,” he said.
Case, however, argued that the Water Commission’s decision did, indeed take into account the diversion structures’ impacts on species migration and “having done that, there is an amount of water available for off-stream use.”
“I understand. I disagree. I don’t think I’m going to convince you. You’re not going to convince me,” Frankel said.
Attorney and former Water Commission executive director Yvonne Izu, representing A&B, argued that the Sierra Club was not entitled to a contested case. “You have to establish that you do have a constitutionally cognizable … property right,” she said. The Sierra Club stated in its contested case hearing petition that it has members who “live next to, use or enjoy streams. That is not sufficient,” Izu said.
“They infer these people have riparian rights. … What kind of property rights do they have? … They mention Hanehoi and Makapipi [streams]. Those streams are to be fully restored. … How are their property rights being deprived?” she asked.
She noted that the Sierra Club cited a recent Hawai‘i Supreme Court decision that upheld a person’s right to make a constitutional claim to a clean and healthful environment, but argued that the group was applying the decision too broadly and claiming that the law concerning public land, Hawai‘i Revised Statutes Chapter 171, creates a property right.
The high court’s decision dealt with the state Public Utilities Commission’s denial of a request by the Sierra Club to participate or intervene in a case regarding a power purchase agreement between Hawaiian Commercial & Sugar (an A&B subsidiary) and Maui Electric Company.
The PUC process does not allow for testimony from the general public. The Land Board’s permitting process does. Given that, Izu said, “We contend there has been more than ample due process to date.” She noted that Sierra Club members have participated in litigation over A&B’s proposed long-term lease and have testified at hearings for the IIFS, legislative hearings, and Land Board meetings.
The board sided with Izu and denied the group’s request. Kaua‘i Land Board member Tommy Oi recused himself from voting because he works for a consultant to A&B.
Marti Townsend, executive director of the Sierra Club of Hawai‘i, said that the group plans to appeal the board’s decision to grant the permits in Circuit Court, but no complaint had been filed as of press time.
On December 20, A&B announced that it had sold 41,000 acres in Central Maui to Mahi Pono, LLC for $262 million. “Mahi Pono is a farming venture between Pomona Farming, LLC, a California-based agricultural group, and the Public Sector Pension Investment Board, a long-term investor and one of Canada’s largest pension investment managers,” an A&B press release states.
Holdover Granted for Blue Hole Diversion
Similar to the East Maui case, the Land Board last month renewed several permits allowing for the diversion of water from streams on Kaua‘i and Hawai‘i island. Most passed unopposed, but the permit for the Kaua‘i Island Utility Cooperative’s (KIUC) diversion of Wai‘ale‘ale and Waikoko streams to power the utility’s two hydroelectric plants along the Iliiliula-Waiahi ditches garnered significant opposition from members of the public seeking greater stream restoration.
Again, the Land Board sought to ameliorate some of the tension by drawing stakeholders into a discussion group. When the board voted to approve the permit on the condition that KIUC, Earthjustice, the community group Kia‘i Wai O Wai‘ale‘ale, and others enter mediation, no one requested a contested case hearing.
The Department of Land and Natural Resources’ Land Division had recommended allowing KIUC to divert up to 8 million gallons a day from Wai‘ale‘ale Stream and 1.6 mgd from Waikoko during median flows and more during higher flows if a sufficient amount remains in the streams. Those recommended amounts would provide the utility with nearly 4 mgd less than it has diverted on average over the past 14 years but reflect what would be available for offstream use if the Water Commission had approved its staff’s recommendations in August on interim instream flow standards for those streams. A contested case hearing request by KIUC scuttled a decision on those recommendations and the commission has yet to determine whether or not it will grant a contested case.
In the meantime, the utility’s diversion permit would have expired without action by the Land Board to renew it. While the Water Commission may ultimately require more water be kept in the streams than was originally recommended, the DLNR’s Land Division chose to base its allocation recommendations on those of the commission staff. KIUC testified that if the board approved the Land Division’s recommendation, the hydroelectric facilities would produce 22.4 percent less power. (The plants together have the ability to generate 1.5 megawatts.)
Utility representatives testified to the board that the diversions don’t just serve the hydropower plants but also provide water for agriculture, ranching, drinking, ecotourism, and the Department of Hawaiian Home Lands. The water serves nearly 10,000 acres controlled by the state Agribusiness Development Corporation (ADC) and Grove Farm and occupied by dozens of ranchers and farmers, the utility stated in a presentation to the board.
They also assured the board that the utility has met the Land Board’s previous permit condition to partially restore the streams (although vandals had already achieved that in 2016). KIUC consultant Jason Hines said that the utility has placed boards on its diver- sions to limit the amount of water flowing into the ditches during high stream flows and also cut a notch in another diversion to return water to the stream. He also said long-term modifications are in the design phase.
“Water is in the streams at all times now,” he said. He also reported that the utility had increased the number of gauging sites along the systems “so we can understand trends and behavior at different flow levels.”
Scott Enright, director of the state Department of Agriculture, testified in support of the permit to KIUC, noting that KIUC has committed to helping maintain the Kekaha and Koke‘e irrigation ditches, which serve the ADC’s lands.
“Maintaining ditch systems is exceedingly expensive,” Enright told the board.
Several Kaua‘i residents, however, flew to the Honolulu meeting to testify in strong opposition to the permit. Some testified that the diversions affected their families’ taro farms or their traditional cultural practices.
“When I see the blatant manipulation of something so good and pure, here to give us life, it feels much like I would imagine being forced to watch the physical abuse of a loved one,” wrote Sommer Kauakahi in her testimony to the board.
Earthjustice attorney Leinaala Ley also pointed out that there are at least four other streams diverted by the ditch system that have not been assessed as part of the staff’s recommendation and information on alternative water sources has never been presented.
Sierra Club representatives argued that KIUC needed to apply for a Conservation District Use Permit and have an accepted environmental impact statement, habitat conservation plan, and incidental taken permit for the diversions.
Unlike A&B, which plans to prepare a full environmental impact statement for its lease, KIUC’s attorneys have suggested that it may do only an environmental assessment, which is far less thorough.
In KIUC’s defense, biologist James Parham, who conducted surveys of stream fauna in the area, testified that some portions of the streams were flush with native shrimp and gobies. Even diversion tunnels contained a lot of the shrimp, or ‘opae. Any areas where gobies, or o‘opu, were absent, he said, were that way not because water quality or quantity is poor, but because the gobies had been wiped out by introduced smallmouth bass.
“[Having] water returned to the stream is not going to benefit o‘opu,” he said.
Land Board and Water Commission chair Suzanne Case suggested it would have been better if the commission had established meaningful IIFS that could inform the board’s decision.
“In my view, since I walk on both sides of this, this is a solid proposal for an interim use pending the rest of those decisions,” she said, noting that Earthjustice and KIUC are still in mediation over the IIFS issue.
Board member Stanley Roehrig suggested that interested members of the community meet with KIUC to discuss matters and report back to the board in a few months. KIUC president David Bissell and Earthjustice’s Ley seemed willing. Isaac Moriwake, also an Earthjustice attorney, recommended that the board provide some kind of direction to participants first.
“Mediation has worked in some contexts. … I wanted to emphasize, it has to be more than punting to parties, expecting the magic to happen,” he said.
Board member Chris Yuen made a motion to approve the permit on the condition that interested members of the community enter mediation and report back to the board in three months.
With regard to the membership of the mediation group, Yuen chose to leave it open-ended. “Last time we specified who was going to be in on discussion, we left somebody out and somebody got really, really mad,” he said.
Board member Keone Downing, however, worried that leaving it open could be a disaster.
“To make KIUC or Earthjustice pick the people, I don’t think it’s fair to them. Guess what? People go home and the phones are going to ring and everyone is going to want to be on it. … You’re going to have a line out the door,” Downing said.
In the end, the board named KIUC, Earthjustice, Kia‘i Wai O Wai‘ale‘ale, the Sierra Club, DHHL, and Grove Farm, but still allowed for others to join. The board did not, however, set any parameters on the mediation.
Before the vote (favored by all members except Kaua‘i member Tommy Oi, who recused himself), Yuen said he was satisfied from looking at tax maps that there were no North Fork taro growers being affected by the diversions. Also, he said he’s seen photos of what Wai‘ale‘ale Stream looks like when it has the amount of water commission staff has recommended be allowed to remain in it.“At 4 mgd, it’s a stream. I grew up on a stream. I love streams. It has the basic attributes of a stream,” he said.
“I feel the allocation recommended by staff takes care of public trust purposes,” he added.
Dogs to the Rescue
More and more, natural resource managers seem to be looking to canines to help keep areas free of potentially damaging invasive species.
The state Department of Agriculture recently announced that its dogs are being trained to detect brown tree snakes, which have decimated bird populations on Guam. Earlier this year, the Lehua Island Restoration Project Partnership employed dogs to survey the island for rats following an eradication effort. In the near future, dogs may also be used by land managers to locate animals that prey on rare native tree snails that are disappearing from forests across the state.
At its December 7 meeting, the Land Board approved a request from its Division of Forestry and Wildlife to solicit proposals from qualified tracker-dog teams to conduct a feasibility study to determine the efficacy of using dogs to detect rosy wolf snails, Jackson’s chameleons, and rats. The board also granted the board’s chair to award a contract to the team selected by an evaluation committee.
DOFAW reported that it takes hundreds of hours for staff to clear a fenced area of the tiny predators, especially the rosy wolf snails, which are about as long as a pinky finger.
— Teresa Dawson