In September, the Sierra Club of Hawai\u02bbi 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.<\/p>\n\n\n\n
Based on the attorneys\u2019 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.<\/p>\n\n\n\n
The Sierra Club\u2019s attorney, David Kimo Frankel, pointed out in the group\u2019s filings that Mahi Pono vice president Grant Nakama admitted that the Fire Department had only asked to use the company\u2019s 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.<\/p>\n\n\n\n
In the end, the additional water that was diverted never exceeded the 31.5 mgd cap. Frankel argued that A&B\u2019s and EMI\u2019s attorneys failed to investigate the companies\u2019 claimed need for more water.<\/p>\n\n\n\n
On October 23, Crabtree denied the Sierra Club\u2019s 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, \u201cthe context was a serious ongoing emergency in Kula, with the added context of the worst fire emergency in Hawai\u02bbi history happening at the same time in Lahaina. \u2026 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 \u2018until 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.\u2019\u201d<\/p>\n\n\n\n
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. \u201cTo the contrary, Mahi Pono pumped ground water to help with the fires \u2013 thereby at least theoretically reducing the amount of additional stream diversions the court allowed,\u201d he wrote.<\/p>\n\n\n\n
\u201cAt 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,\u201d he continued.<\/p>\n\n\n\n
Although Crabtree denied the Sierra Club\u2019s 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.<\/p>\n\n\n\n
He asked the companies to provide more information. \u201c[T]here is legitimate question whether more water was diverted than was necessary, without good cause,\u201d he wrote.<\/p>\n\n\n\n
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\u2019s daily and monthly average diversions never reached 31.5 mgd. <\/p>\n\n\n\n
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) \u201cis 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, <\/em><\/strong>diversified agriculture required 23.76 mgd. For that same time period, the County consumed, on a daily basis,<\/em><\/strong>at least 5.10 mgd for the Department of Water Supply and, on a monthly average,<\/em><\/strong> 0.77 mgd for the Kula Agricultural Park. Just these three uses consumed approximately 29.63 mgd,\u201d they wrote, adding that an unknown amount of water was also used for fighting the files in Central and Upcountry Maui.<\/p>\n\n\n\n They argued that there was no evidence those uses were not reasonable or beneficial, and that \u201cany implication in the court\u2019s question that the water diverted during this time period was somehow \u2018wasted\u2019 is also unfounded.\u201d<\/p>\n\n\n\n \u201cIf we assume, as Sierra Club often argues, that the entirety of the \u2018Reservoir\/Seepage\/Fire Protection\/Evaporation\/Dust Control\/Hydroelectric\u2019 column is system losses, the amount of system losses for August 2023 was 9.39%. \u2026 This is well below the 22.7% system loss rate found reasonable by the Commission on Water Resource Management,\u201d they continued.<\/p>\n\n\n\n They added that A&B\/EMI don\u2019t monitor reservoir levels daily and because water is constantly coming in and going out, they \u201ccan\u2019t 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\u2019s reservoirs.\u201d<\/p>\n\n\n\n \u2014 Teresa Dawson<\/strong><\/p>\n\n\n\n For Further Reading<\/strong><\/p>\n\n\n\n Also see the following related articles on our website, environment-hawaii.org:<\/p>\n\n\n\n \u2022 \u201cCourt Orders Reduction in Diversions Of Water from East Maui Streams<\/a>,\u201d July 2023;<\/p>\n\n\n\n \u2022 \u201cEast Maui Case Tests Commitments to Water Conservation, Fire Protection<\/a>,\u201d September 2023; and<\/p>\n\n\n\n \u2022 \u201cJudge Finds A&B, EMI Failed to Prove East Maui Diversion Cap Needs Lifting<\/a>,\u201d and \u201cJudge Decides Against Ordering Maui Fire Plan, Reservoir Lining<\/a>,\u201d October 2023.<\/p>\n","protected":false},"excerpt":{"rendered":" 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 … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":15353,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[518,28],"tags":[3],"class_list":["post-15519","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-december-2023","category-water","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15519","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=15519"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15519\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/15353"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15519"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15519"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15519"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}