{"id":11912,"date":"2019-11-01T20:55:10","date_gmt":"2019-11-01T20:55:10","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=11912"},"modified":"2020-07-06T23:43:05","modified_gmt":"2020-07-06T23:43:05","slug":"board-talk-water-permits-for-ab-kiuc-and-others","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=11912","title":{"rendered":"Board Talk: Water Permits For A&B, KIUC, and Others"},"content":{"rendered":"\n

(This article has been corrected. Land Board member Chris Yuen did not add a condition requiring a sublessee establishing an annual crop to harvest it before the permit expires. Rather, he required Mahi Pono to inform any lessees that rely on irrigation water from the RP that the availability of water is based on a month-to-month permit that ends in a year.)<\/em>  <\/p>\n\n\n\n

On June 18, the Intermediate Court of Appeals vacated a Circuit Court decision invalidating revocable permits that the Land Board had granted to Alexander & Baldwin and its subsidiary, East Maui Irrigation Co. Ltd. The year-to-year permits allowed for the continued diversion of stream water from East Maui to Central and Upcountry Maui. <\/p>\n\n\n\n

The Native Hawaiian Legal Corporation\n(NHLC), which represents the plaintiffs\nin the case, has asked the state Supreme\nCourt to review the ICA\u2019s decision. In the\nmeantime, the holdover water use permits\nissued by the Land Board under Act 126\nof the 2016 Legislature to A&B, EMI, and\nothers diverting water from state land are\nset to expire at the end of the year.\n<\/p>\n\n\n\n

Although the Legislature did not extend Act 126\u2019s sunset date beyond 2019, the ICA decision allowed the Land Board to continue the water permits to those who are still in the process of obtaining a long-term water lease. <\/p>\n\n\n\n

On October 11, the DLNR\u2019s Land Division recommended that the Land Board continue A&B\/EMI\u2019s permits, so long as their diversions were capped at a monthly average of 35 million gallons a day. The division arrived at that number by averaging their highest monthly diversions from January 2017 to April 2019, and rounding up. <\/p>\n\n\n\n

A representative of Mahi Pono, which co-owns EMI and seeks to expand farming on the agricultural lands in Central Maui it\nbought from A&B, told the board that 35\nmgd would not be nearly enough for the\ncoming year.\n<\/p>\n\n\n\n

Mahi Pono operations manager Grant\nNakama said the company plans to plant\nmore than 4,000 acres of food crops next\nyear and maintain 12,000 acres of pasture.\nTo meet its needs, as well as those of the\nMaui Department of Water Supply, it\nwould need an annual average of 45 mgd,\nhe said.\n<\/p>\n\n\n\n

\"\"
Alexander & Baldwin vice president Meredith Ching (left) and Mahi Pono operations manager Grant Nakama (right).<\/figcaption><\/figure><\/div>\n\n\n\n

The company plans to invest $20 million into more efficient irrigation and $60 million to ramp up farming operations, he said. <\/p>\n\n\n\n

\u201cWe\u2019ll enter the year already using 34\nmgd,\u201d he said.\n<\/p>\n\n\n\n

Upcountry Maui resident Andy Ho testified in support of the permits, especially in light of the recent wildfires on the island. \u201cWe need some kind of agriculture in the central plain. It\u2019s too much acres in a big dustbowl,\u201d he said. <\/p>\n\n\n\n

Huelo resident and Sierra Club member\nLucienne De Naie, however, questioned\nMahi Pono\u2019s claimed water needs, which\nshe called \u201cvery slippy-slidey.\u201d Reserving 5\nmgd for the county\u2019s needs, 40 mgd would\nbe left for Mahi Pono. \u201cIt\u2019s like 10,000\ngallons per acre [per day],\u201d she said. She\nnoted that none of the crops proposed in\nthe recently released draft environmental\nimpact statement for A&B\u2019s long-term\nlease would require that much water, and\nthat it was unclear how much well water\nwould be used.\n<\/p>\n\n\n\n

\u201cTwenty-nine percent of their [A&B\u2019s] water used to come from the wells. … Where are all these numbers heading? No one wants to stop agriculture, but we see the same stories come up year after year. … During the last four years, there\u2019s not been enough water in the summer months [in the streams] even without giving any to DWS,\u201d she said. <\/p>\n\n\n\n

Marti Townsend, executive director of the\nSierra Club of Hawai\u2018i, said she appreciated\nthat the Land Division tried to establish a cap\non the diversions, but thought even 35 mgd\nwas too much. \u201cThis is not an opportunity\nto, slow by slow, ratchet up without doing\nany environmental review,\u201d she said.\n<\/p>\n\n\n\n

She added that Mahi Pono should be\nlimited to about 26 mgd and grow whatever\nit can with that amount of water. \u201cThey\nshould not be allowed to use this water for\nflushing toilets, making concrete. One mgd\ngoes toward industrial uses,\u201d she said of\nMahi Pono\u2019s past uses for the water.\n<\/p>\n\n\n\n

NHLC attorney Alan Murakami was also alarmed by Mahi Pono\u2019s claimed water need of 54 mgd at the end of its next growing cycle. He said a typical truck crop requires only 2,500 gallons per acre per day. More details on what the water will be used for seemed like a minimal thing to ask of a private, commercial operator, he argued. <\/p>\n\n\n\n

The Hawai\u2018i Supreme Court decision in\nthe Ka Pa\u2018akai <\/em>case, which sets forth how\nagencies must assess and mitigate potential\nimpacts of their actions on traditional and\ncustomary Hawaiian practices, requires the\nLand Board to get more precise information\non Mahi Pono\u2019s water use, he argued. While\nthe board still had two more months to get\nthat information before the current permit\nexpired, he said he wasn\u2019t sure whether that\nwas enough time.\n<\/p>\n\n\n\n

Seeking the restoration of streams in East Maui, the NHLC\u2019s clients initiated a contested case hearing on A&B\u2019s proposed long-term lease in 2001, as well as the more recent challenge to the Land Board\u2019s annual renewal of revocable permits for the company\u2019s water diversions. \u201cWhen the RP lasts longer than the leases that it\u2019s replaced, there\u2019s something wrong with that,\u201d he lamented. <\/p>\n\n\n\n

\u201cI\u2019ve had two clients pass on [during the\ncourse of this process]. I might sound a\nlittle strident saying these permits should\nnot be granted [but] it has to be done right\nand not justified with some kind of post\nhoc rationalization that these laws can be\nignored,\u201d he said.\n<\/p>\n\n\n\n

\u201cWe\u2019ve been before you 18 years already\nasking for the same thing. Exactly the same\nthing. I\u2019m just asking that you do the right\nthing,\u201d he said.\n<\/p>\n\n\n\n

As it did last year, the Sierra Club asked for a contested case hearing on the permits\u2019 impacts on its members, and after an executive session, the Land Board voted to deny it. <\/p>\n\n\n\n

Townsend and De Naie have repeatedly pointed out that the board has failed to determine whether enough water will remain in the dozen or so diverted streams that have not had their interim instream flow standards amended recently by the Commission on Water Resource Management. (Having been rejected last year, the Sierra Club sued in 1st Circuit Court to overturn the permits approved in 2018. A trial has been scheduled for next May.) <\/p>\n\n\n\n

Under the terms of Mahi Pono\u2019s purchase of A&B\u2019s lands in Central Maui, if Mahi Pono is unable to secure enough water to fulfill its plans, A&B must reimburse the company\nsome of what it had paid for the land.\n<\/p>\n\n\n\n

Yuen increased the cap from a monthly\naverage of 36 mgd to an annual average of\n45 mgd. He noted that the interim instream\nflow standards of 27 of the streams diverted\nby the EMI system left 93 mgd available for\noffstream use.\n<\/p>\n\n\n\n

\u201cThe Land Board can decide to allow the taking of only half of what\u2019s available. … I\u2019d like to see them expand,\u201d he said. He added another condition to his motion: that Mahi Pono inform any lessees that rely on irrigation water from the RP that the availability of water is based on a month-to-month permit that ends in a year.  For orchards, in particular, he said, there is no guarantee of water in the long term. <\/p>\n\n\n\n

With additional amendments recommended by board member Stanley Roehrig to require Mahi Pono to clean trash or other remnants of sugar plantation use of the stream areas, the board approved the permit. Maui board member Jimmy Gomes recused from voting. <\/p>\n\n\n\n

KIUC\n<\/strong><\/p>\n\n\n\n

In addition to the permits to A&B and\nEMI, the Land Division recommended the\ncontinuation of permits held by the Kaua\u2018i\nIsland Utility Cooperative and the Hawai\u2018i\nElectric Light Co. for hydroelectric power\ngeneration purposes, a permit to Kaua\u2018i\nresident Jeffrey Linder, and four permits\nto farmers and ranchers in the Ka\u2018u district\nof Hawai\u2018i island. The board approved all\nof the permits, as well as a new permit to\nKa\u2018u Mahi, LLC, which provides water to\nfarmers in Ka\u2018u.\n<\/p>\n\n\n\n

The KIUC permit garnered some criticism from Earthjustice attorney Leina\u2018ala Ley. KIUC president David Bissell had testified that the utility has been providing at least the minimum amount of water in the streams as required by the Land Board last year. Even then, he noted, there are times when about 100 feet of Wai\u2018ale\u2018ale Stream is dry. <\/p>\n\n\n\n

He added that in the past year, there was\na leak in a concrete flume feeding KIUC\u2019s\nupper hydropower plant, a large albizia\ntree fell on an irrigation ditch and broke\na metal pipe siphon, and a large landslide\nmade things difficult to repair. \u201cIt\u2019s kind of\nan indication of how much work goes into\nkeeping these systems in use,\u201d he said.\n<\/p>\n\n\n\n

Ley argued that the amount of water\nKIUC was releasing into the streams was\nless than what is needed for mauka to\nmakai flows. She added that KIUC admits\nto losing 2.6 mgd in system losses. \u201cThey\nbrought up again today there were larger\nbreaks. Some clients took pictures of water\n<\/p>\n\n\n\n

pouring out of the system,\u201d she said before\nrecommending that the board set some kind\nof standards for best practices.\n<\/p>\n\n\n\n

She asked that the board require that\nKIUC provide a report on what\u2019s been done\nto mitigate system losses, install gauges on\nthe smaller diverted streams, and complete\nan investigation by a certain deadline as to\nhow to reconfigure the diversions to take\nhigh flows rather than low flows.\n<\/p>\n\n\n\n

She also asked for an emergency plan to\nshut the diversions down in a disaster so\nthat water isn\u2019t wasted.\n<\/p>\n\n\n\n

\u201cI think there\u2019s a lot of room for the board to set the bar higher,\u201d she said. The board did not adopt any of her recommendations. <\/p>\n\n\n\n

To Ley\u2019s assertion that KIUC was not releasing enough water to establish continuous flow throughout Wai\u2018ale\u2018ale Stream, board member Chris Yuen noted that it\u2019s a gaining stream. \u201cIf there\u2019s no water in it [even with KIUC\u2019s releases], it\u2019s because\nthere\u2019s not going to be any water in it,\u201d\nhe said.\n\n\t\t\t\t\t<\/p>\n\n\n\n

East Kaua\u2018i\n<\/strong><\/p>\n\n\n\n

The East Kaua\u2018i Water Users\u2019 Cooperative\nasked that its permit not be continued\nbecause it can\u2019t afford to maintain the old\nsugar plantation irrigation system it draws\nwater from, nor can it afford some of the\ncosts associated with securing a long-term\nwater lease.\n<\/p>\n\n\n\n

\u201cHopefully, another entity can assume\nmanagement of the system,\u201d land agent Ian\nHirokawa told the board. Otherwise, the\nLand Division will shut it down, he said.\nAccording to his division\u2019s report to the\nboard, that would include the removal of the\nWailua and Upper Kapahi reservoirs.\n<\/p>\n\n\n\n

The report explains that the co-op had supported a bill in the last legislative session that would have given the state Department of Agriculture authority over the irrigation system, as well as staff and funding to manage it. When the bill failed, the co-op decided to bow out. <\/p>\n\n\n\n

\u201cThe Land Division doesn\u2019t have the\nexpertise to be a water provider [and] there\u2019s\nno way the system can operate without a\nsubsidy,\u201d Hirokawa told the board.\n<\/p>\n\n\n\n

Kaua\u2018i board member Tommy Oi, however, argued that the division shouldn\u2019t even be thinking about closing the system down if the state wants to pursue agriculture in the future. <\/p>\n\n\n\n

Board member Chris Yuen agreed. \u201cIf\nwe were to close the system, that would be\ntragic,\u201d he said.\n<\/p>\n\n\n\n

Hirokawa said that hopefully, during the next legislative session, the Department of\nAgriculture will get the resources it needs\nto take the system over. \u201cNo one wants to\nshut it down [but] I don\u2019t see how DLNR\ncan substitute as an operator,\u201d he said.\n<\/p>\n\n\n\n

To this, Yuen asked what\u2019s the worst that\nwould happen if the division just let the\nwater run through the system.\n<\/p>\n\n\n\n

Board chair Suzanne Case explained that\njust letting the water be diverted with no\nend users could be considered waste.\n<\/p>\n\n\n\n

\u201cWe all share the concern about not letting this investment deteriorate. We had that problem in Hamakua [on Hawai\u2018i island]. It\u2019s a big problem. There\u2019s no urgency of use and so that\u2019s the challenge,\u201d she said. <\/p>\n\n\n\n

In the case of East Kaua\u2018i, it\u2019s a big system\nthat\u2019s expensive to operate and not much is\nbeing farmed, she said.\n<\/p>\n\n\n\n

Watershed Management Plans\n<\/strong><\/p>\n\n\n\n

Under state law, water lease holders must\ncomplete a watershed management plan,\nwhich can be an expensive undertaking.\nTo ease the burden on some of the smaller\nwater users seeking a lease, the Land Board\nearlier this year asked the Land Division to\nset minimum standards for the plans and\nto investigate to what extent existing plans\nmight suffice.\n<\/p>\n\n\n\n

\u201cThere are many existing mauka watershed plans, including those implemented by the State\u2019s Division of Forestry and Wildlife (DOFAW) and groups like the Watershed Partnerships. Some water lease applicants also have their own watershed management plans. Unfortunately, existing watershed plans are not always directly correlated to the water lease area and some plans are old and outdated. In certain places, new threats to watershed health (e.g. Rapid \u2018Ohi\u2019a Death) are not addressed in existing watershed plans. Furthermore, estimated budgets may not reflect the current cost of management if the plan is over five years old,\u201d a division report states. <\/p>\n\n\n\n

Even so, it concluded that a 2012 Ka\u2019u\nForest Reserve Management Plan prepared\nby DOFAW meets the minimum content\nrequirements. \u201cTherefore, that plan will be\nutilized to the greatest extent possible, and\nthe department will work with the Ka\u2019u\nlessees to determine how to implement on\nan equitable basis,\u201d the report states.\n<\/p>\n\n\n\n

Yuen asked DOFAW planner Katie Ersback whether KIUC\u2019s environmental assessment for its proposed lease or A&B\u2019s draft EIS would suffice as watershed management plans. She said her division had not yet reviewed them. <\/p>\n\n\n\n

—Teresa Dawson<\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

(This article has been corrected. Land Board member Chris Yuen did not add a condition requiring a sublessee establishing an annual crop to harvest it before the permit expires. Rather, he required Mahi Pono to inform any lessees that rely on … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":11913,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,460],"tags":[3],"class_list":["post-11912","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-board-talk","category-november-2019","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11912","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=11912"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11912\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/11913"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11912"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11912"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11912"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}