{"id":16902,"date":"2026-01-07T12:50:28","date_gmt":"2026-01-07T22:50:28","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=16902"},"modified":"2026-01-20T15:17:49","modified_gmt":"2026-01-21T01:17:49","slug":"board-talk-sierra-club-appeals-land-board-decisions-to-deny-contested-case-grant-water-permit","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=16902","title":{"rendered":"BOARD TALK: Groups Appeal Land Board Decisions To Deny Contested Case, Grant Water Permit"},"content":{"rendered":"\n<p>Here we go again.<\/p>\n\n\n\n<p>On October 29, Environmental Court Judge Lisa W. Cataldo <a href=\"https:\/\/environment-hawaii.org\/?p=16789\">issued an opinion in the Sierra Club of Hawai\u2018i\u2019s appeal<\/a> of a 2022 Land Board decision to grant revocable permits to Alexander &amp; Baldwin and East Maui Irrigation Company to divert up to 45 million gallons a day of water from East Maui streams.<\/p>\n\n\n\n<p>Although the permits had expired years ago, Cataldo instructed the Land Board that when granting future permits, it ensure that the Commission on Water Resource Management\u2019s interim instream flow standards (IIFS) for East Maui streams \u201care in place and fully implemented before allowing more water to be taken.\u201d<\/p>\n\n\n\n<p>According to EMI diversion data from January through October, last year the company took an average of 22.41 million gallons a day from East Maui streams. And by most accounts, the IIFS for many East Maui streams still have not been met. Yet at the December 12 meeting of the Board of Land and Natural Resources, the Department of Land and Natural Resources\u2019 Land Division recommended granting a permit to EMI and its parent company, Mahi Pono, for the diversion of 41.72 mgd, 35.22 mgd of which would be used by Mahi Pono for agricultural uses in Central Maui with the remainder going to the county Department of Water Supply to meet its Upcountry needs.<\/p>\n\n\n\n<figure class=\"wp-block-image size-large\"><a href=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.25-PM-1.jpeg\"><img loading=\"lazy\" decoding=\"async\" width=\"1024\" height=\"641\" src=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.25-PM-1-1024x641.jpeg\" alt=\"\" class=\"wp-image-16933\" srcset=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.25-PM-1-1024x641.jpeg 1024w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.25-PM-1-300x188.jpeg 300w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.25-PM-1-768x481.jpeg 768w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.25-PM-1-1536x961.jpeg 1536w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.25-PM-1-80x50.jpeg 80w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.25-PM-1.jpeg 1956w\" sizes=\"auto, (max-width: 1024px) 100vw, 1024px\" \/><\/a><figcaption class=\"wp-element-caption\">In addition to delivering water for Mahi Pono\u2019s fields in Central Maui, the East Maui Irrigation system provides water for Maui County&#8217;s Kula Ag Park, pictured here. Credit: CWRM<\/figcaption><\/figure>\n\n\n\n<p>At that meeting, the recommendation of the DLNR\u2019s Land Division stated that the 35.22 mgd for Mahi Pono \u201cis based on the average amount of water used from January through October of 2025 for diversified agriculture, historical and industrial uses, and other uses including system losses, but excluding any water that is not used by the County of Maui, totaling (36.82 mgd), minus an additional 1.60 mgd. This amount is based on the current planted acreage of 12,734 acres. \u2026 This recommendation is in response to concerns raised by Sierra Club that Mahi Pono is planting too many acres. We note that this recommendation is to maintain the status quo during this 2026 RP.\u201d&nbsp;<\/p>\n\n\n\n<p>It adds in a footnote, \u201cPreviously, the revocable permit allowed for a diversion of 3,263 gallons per acre per day (gad) multiplied by actual acreage planted. This new calculation is based on 2,765.82 gad multiplied by current planted acreage of 12,734.\u201d<\/p>\n\n\n\n<p>As for Judge Cataldo\u2019s instructions regarding the IIFS, the Land Division stated its staff \u201cconsulted with CWRM staff and was informed that the applicant\u2019s diversion of water was compliant with the IIFS. CWRM staff also noted that the applicant was working in good faith to obtain numerous regulatory approvals to remove outstanding diversions in the Huelo region to comply with the 2022 IIFS decision.\u201d<\/p>\n\n\n\n<p>The Land Division also recommended that EMI and Mahi Pono should be required \u201cto provide an improvement plan in order to implement practical mitigation measures to reduce system losses. Regarding the ditch system, staff recommends that the board require the applicant to start construction no later than November 1, 2026, on all diversion removals required under the 2018 and 2022 CWRM orders thatreceive all required State, Federal and County permits by June 30, 2026. Staff believes that requiring this work would also meet the requirement that CWRMs IIFS are implemented.\u201d<\/p>\n\n\n\n<p>The division also recommended that the companies provide by March 31 a plan for lining all reservoirs that store water diverted under the permit.&nbsp;<\/p>\n\n\n\n<p>\u201cStaff believes that these recommendations sufficiently comply with the 2025 court opinion requirements. Staff does not believe that the applicant must complete certain construction activities on either the diversion removals or lining reservoirs as a pre-requisite for the board to approve the issuance of the 2026 revocable permit, especially if completion of permitting requirements remains outstanding,\u201d it stated.<\/p>\n\n\n\n<p>In written testimony to the board, both the Sierra Club and N\u0101 Moku \u02bbAupuni \u02bbo Ko\u02bbolau Hui took issue with many of the Land Division\u2019s recommendations and requested a contested case hearing.<\/p>\n\n\n\n<p>Native Hawaiian Legal Corporation attorney Ashley Obrey, who represents N\u0101 Moku, wrote, \u201cFirst, authorizing 35.22 mgd as the supposed \u2018status quo\u2019 does not maintain anything; instead, it represents a <strong>57 percent increase<\/strong> over the actual average diversion of 22.41 mgd as reported by Mahi Pono and EMI to the board. This is unacceptable. The Circuit Court expressly barred BLNR from \u2018allowing more water to be taken\u2019 before CWRM\u2019s orders are fully implemented. It is undisputed that the diverters have not completed the modifications previously ordered by CWRM, which are essential for riparian, recreation, and cultural uses of the streams as well as biological values. Staff\u2019s proposal does exactly what the court prohibited.<\/p>\n\n\n\n<p>\u201cSecond, the staff submittal proposes increasing not only the total the amount of water diverted from East Maui but the allocation of water to the county as well. The county does not require up to 6.25 mgd for its total domestic and Kula ag park uses. Its monthly average is 4 mgd.\u201d<\/p>\n\n\n\n<p>The Sierra Club\u2019s testimony argued that the Land Division had misinterpreted EMI\u2019s data for 2025. \u201cThe staff used data from the diversified agricultural column, but that column includes water taken from the revocable permit area as well as water from outside the revocable permit area and lots of groundwater. It calculated that the average amount of water <strong>used<\/strong> this year was 35.22 million gallons per day. But the court\u2019s order does not refer to the amount of water <strong>used<\/strong>; it refers to the amount <strong>taken,<\/strong>\u201d it stated.<\/p>\n\n\n\n<p>\u201cThis board has already gotten in trouble with the court for making frivolous representations that were manifestly and palpably without merit. <em>\u2026 <\/em>Does it wish to increase the court\u2019s ire by defying the court\u2019s instructions?\u201d the Sierra Club continued.&nbsp;<\/p>\n\n\n\n<p>It pointed out that the Water Commission\u2019s IIFS decisions in 2018 and 2022 ordered modifications to stream diversions, and called for ensuring downstream flows in Ho\u2018olawa, Waipi\u2018o, H\u0101nawana, Naili\u02bbilihaele, \u2018O\u2018opuola, and Kailua streams.<\/p>\n\n\n\n<p>\u201cYet, none of the diversion structures have been modified for these six streams! CWRM has already concluded that diversions on six streams are harming others. Until that harm is stopped, BLNR cannot allow EMI or Mahi Pono to take more water,\u201d the group stated.<\/p>\n\n\n\n<p>At the board\u2019s meeting, chair Dawn Chang stated that it needed to deal with the Sierra Club\u2019s and N\u0101 Moku\u2019s requests in their written testimony for a contested case hearing before taking up any substantive discussion of the proposed revocable permit to EMI and Mahi Pono for 2026.<\/p>\n\n\n\n<p>Attorney David Kimo Frankel, who represents the Sierra Club, pointed out that the group had not yet filed the required written petition or made an oral request for a contested case hearing.&nbsp;<\/p>\n\n\n\n<p>\u201cOther people want to testify. We want to make sure we don\u2019t cut them off. We will likely make that formal request at the end,\u201d he said.<\/p>\n\n\n\n<p>Chang argued that if the Land Board granted the requests for a contested case hearing, \u201cthe rest of it is moot. We can\u2019t proceed forward on the RP.\u201d<\/p>\n\n\n\n<p>(In May 2024, <em>Environment Hawai\u02bbi<\/em> challenged the Land Board\u2019s practice of stopping public testimony once a contested case hearing is requested. The Office of Information Practices asked the BLNR to defend this practice in June 2024; it has yet to do so. For more, see \u201cEnvironment Hawai\u02bbi Appeals Refusal of BLNR to Hear Marconi Point Testimony,\u201d Board Talk column, August 2024.)<\/p>\n\n\n\n<p>Chang then asked Frankel and Obrey to explain to the board how the proposed permit would harm their clients.<\/p>\n\n\n\n<p>Frankel pointed to the Water Commission\u2019s 2022 finding that six East Maui streams needed more water, that the diversions were causing harm, and that the commission\u2019s order that diversions be modified was still unmet.<\/p>\n\n\n\n<p>\u201cIf you grant us a contested case hearing and actually act diligently, which you haven\u2019t been doing, to commence the contested case hearing before the end of January, we will not go to court to challenge the RP during the pendency of the [hearing] as long as you do not authorize more than 23 mgd,\u201d Frankel said.<\/p>\n\n\n\n<p><strong><\/strong>Frankel explained that this amount would comply with the court\u2019s order that the Land Board may not increase the amount of water taken until the modifications are made.&nbsp;<\/p>\n\n\n\n<p>\u201cSo, 23 mgd approximately is what they were taking in 2025. You would be preserving the status quo. \u2026 We could take a very harsh position and say, \u2018not a drop of water at all.\u2019 We are attempting to provide you with a reasonable proposal, as we have in the past,\u201d he said, noting that the Sierra Club\u2019s proposed cap is similar to one the court ordered a couple of years ago.<\/p>\n\n\n\n<p>\u201cWe\u2019re not here to bankrupt Mahi Pono. We\u2019re not here to have all their crops die. We are asking for a balanced solution. A <em>balanced<\/em> solution. And I don\u2019t think you recognize what we\u2019re proposing is a balanced proposal. What the staff is proposing is not. What Mahi Pono is asking for is not,\u201d he said. (Mahi Pono had asked for even more water for 2026 than what the Land Division proposed.)<\/p>\n\n\n\n<p>Chang countered that the Land Board must balance all of the interests involved, including sustainable agriculture. \u201cHow do we balance that?&#8221;<\/p>\n\n\n\n<p>\u201cYou\u2019re giving them 23 million gallons of water a day, which is what they used in 2025. So you\u2019re not cutting off ag at the knees. What you\u2019re stopping is expansion until these complicated issues are resolved,\u201d he replied.&nbsp;<\/p>\n\n\n\n<p>He later clarified that not all of that 23 mgd would go to Mahi Pono, as that amount includes the water used by the county. Subtracting the water to the county, \u201cMahi Pono would have available to it 19 mgd, which can be supplemented \u2014 as it has been \u2014 with water from streams that are west of the RP areas, as well as groundwater, which it has been using for the past several years,\u201d he said.<\/p>\n\n\n\n<p>To this, Chang said, \u201cCWRM has taken the position that they would prefer that surface water be used\u201d instead of groundwater, possibly referring to a <a href=\"https:\/\/environment-hawaii.org\/?p=16793\">recent presentation by CWRM deputy director Ciara Kahahane and staff hydrologist Ayron Strauch<\/a> to the&nbsp; Water Commission on the difficulties of meeting all off-stream uses of East Maui water during the severe drought this past year.<\/p>\n\n\n\n<p>Frankel countered, \u201cThe Water Commission has not taken that position. A staff member of the Water Commission took that position. The Water Commission, as you know, has never had a meeting to discuss this. We\u2019ve never had an opportunity to cross examine anyone on this. That is not the commission\u2019s recommendation. That is a staff member statement taken, I believe, out of context.\u201d<\/p>\n\n\n\n<p>The 2018 Water Commission IIFS decision approved the use of groundwater to irrigate the crops in Central Maui, and to change that position so radically could require a public hearing at least, and possibly a contested case hearing, he said.<\/p>\n\n\n\n<p>Chang then suggested that the commission\u2019s position is that so long as the IIFS are met, any amount of water above that could be taken to meet off-stream uses.<\/p>\n\n\n\n<p>Frankel explained that the 2022 Water Commission finding that more water needed to flow downstream in six East Maui streams \u201chas not been met. Currently there is a violation of the [IIFS]. You need to recognize that.\u201d<\/p>\n\n\n\n<p>\u201cIf the Water Commission staff, who are qualified staff, are saying that the IIFS is met \u2026\u201d Chang stated.<\/p>\n\n\n\n<p>Frankel interjected, \u201cWe\u2019re going to cross examine them on that. It\u2019s black and white.\u201d<\/p>\n\n\n\n<p>NHLC\u2019s Obrey added that she joined in everything Frankel had said. She also took issue with how the Land Division submittal attempted to address the proposed permit\u2019s possible impacts to traditional and customary practices in East Maui.<\/p>\n\n\n\n<p>The Land Division\u2019s submittal cites language in the Water Commission\u2019s 2018 IIFS decision that suggests that the record is not clear and no evidence was presented that native gathering rights were traceable to at least November 25, 1892. Yet, the commission\u2019s decision \u201cassumed that there are persons who can show that they possess native Hawaiian customary and traditional gathering rights.\u201d<\/p>\n\n\n\n<p>That limited analysis, Obrey argued, was \u201cappalling.\u201d<\/p>\n\n\n\n<p>\u201cThe way that it focuses on the Water Commission decision, it brings to mind maybe, people are doubting there are traditional and customary practices in East Maui,\u201d she said, adding that the courts and the environmental impact statement prepared for a proposed long-term disposition of East Maui water both recognize the traditional and customary practices exercised in East Maui.<\/p>\n\n\n\n<p>She also raised the fact that the staff submittal contained no <em>Ka Pa\u02bbakai<\/em> analysis addressing possible impacts to those practices or possible mitigation.&nbsp;<\/p>\n\n\n\n<p>Whatever the Water Commission\u2019s 2018 IIFS decision says about traditional and customary practices, Obrey argued that more needed to be done to assess current effects the diversions from East Maui are having.<\/p>\n\n\n\n<p>\u201cAny time there are changes to a stream, that impacts stream life. It\u2019s gonna impact farming. It&#8217;s gonna impact gathering.&nbsp; \u2026 We\u2019re coming out of drought conditions,\u201d she said, noting that Makapipi Stream isn\u2019t flowing and that she\u2019s heard from the community that Honomanu has had low flows. \u201cTo take more water out is a problem,\u201d she said.<\/p>\n\n\n\n<figure class=\"wp-block-image size-large\"><a href=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.37-PM-1.jpeg\"><img loading=\"lazy\" decoding=\"async\" width=\"1024\" height=\"704\" src=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.37-PM-1-1024x704.jpeg\" alt=\"\" class=\"wp-image-16930\" srcset=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.37-PM-1-1024x704.jpeg 1024w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.37-PM-1-300x206.jpeg 300w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.37-PM-1-768x528.jpeg 768w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.37-PM-1-1536x1056.jpeg 1536w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2026\/01\/Image-1-5-26-at-7.37-PM-1.jpeg 1972w\" sizes=\"auto, (max-width: 1024px) 100vw, 1024px\" \/><\/a><figcaption class=\"wp-element-caption\">According to the Sierra Club and N\u0101 Moku \u02bbAupuni \u02bbo Ko\u2018olau Hui, Mahi Pono\u2019s diversions from the East Makapipi and Porgue tunnels take water that would otherwise flow into Makapipi Steam, which is currently dry (pictured here). CREDIT: CWRM<\/figcaption><\/figure>\n\n\n\n<hr class=\"wp-block-separator has-alpha-channel-opacity\"\/>\n\n\n\n<p>\u201cIs it your position that CWRM\u2019s conclusion that the IIFS has been satisfied is not correct?\u201d Chang asked.\u201c<\/p>\n\n\n\n<p>\u201cI\u2019m not comfortable with that. Especially, with this recent court order,\u201d Obrey replied.<\/p>\n\n\n\n<p>Chang then asked both Obrey and Frankel whether they thought it was the Land Board\u2019s role to weigh the various uses of water to determine what\u2019s appropriate,&nbsp;<\/p>\n\n\n\n<p>\u201cSo there are traditional and customary practices; there\u2019s ecosystem. But there\u2019s also other reasonable beneficial uses, municipal water, sustainable ag,\u201d she said.<\/p>\n\n\n\n<p>\u201cYou have discretion, but it\u2019s very limited discretion,\u201d Frankel replied. \u201cThere\u2019s minimum standards that need to be met and have not been met. So, for example, you cannot authorize all the water to be taken from a stream. That is not balanced. Even if it provides the water to agriculture,\u201d he said.<\/p>\n\n\n\n<p>\u201cDo you believe that that\u2019s what the board has done? Authorized all water [to be taken from the streams]?\u201d Chang asked.<\/p>\n\n\n\n<p>\u201cYes. From six streams, yes,\u201d he replied.<\/p>\n\n\n\n<p>Chang later asked them if they disputed the Water Commission\u2019s IIFS finding that approximately 56 mgd is estimated to be available for off-stream use at median flows.<\/p>\n\n\n\n<p>Frankel said the board needed to recognize the larger issue, which is that 30 percent of the time, there is far less water than that. \u201cI think it\u2019s down to like 26 [mgd]. I don\u2019t think Mahi Pono\u2019s accepted that fact, which is why it\u2019s so important they not be planting more crops now, because in the long-term, there\u2019s not going to be enough water for their crops,\u201d he said.<\/p>\n\n\n\n<p>After hearing from Frankel and Obrey, the board met in executive session to discuss with its deputy attorney general their contested case hearing requests. Upon returning, Chang made a motion to deny them.&nbsp;<\/p>\n\n\n\n<p>\u201cIn weighing the different government interests, including uninterrupted service to [the Maui DWS], as well as supporting ag, balanced against the interest asserted [by the Sierra Club and N\u0101 Moku], I am making a motion to deny,\u201d she said.<\/p>\n\n\n\n<p>Her motion, seconded by Hawai\u02bbi island board member Riley Smith, passed unanimously.<\/p>\n\n\n\n<p><strong>\u2018Ketchup and M&amp;Ms\u2019<\/strong><\/p>\n\n\n\n<p>When it came time for the public to testify on the proposed permit, Sharon Hurd, director of the state Department of Agriculture and Biosecurity, went first.<\/p>\n\n\n\n<p>She supported the permit and stressed the need for more locally produced food, noting that only 1.1 percent of the state\u2019s farms have the ability to provide food for the state. \u201cMahi Pono would like to do their bit,\u201d she said.<\/p>\n\n\n\n<p>She suggested that if the world goes through another pandemic, without local farms that can produce the volume of food necessary to sustain the state, \u201cwe\u2019re going to be eating ketchup and M&amp;Ms, folks.\u201d<\/p>\n\n\n\n<p>She argued for allowing more water to be diverted than is needed, given strict crop-specific requirements. \u201cFarming is not surgical like that [when it comes to water needs]. I\u2019m not going to say arbitrary, it\u2019s not surgical,\u201d she said.<\/p>\n\n\n\n<p>In any case, she said, \u201cExpansion is key.\u201d<\/p>\n\n\n\n<p>Attorney Cal Chipchase, who represents Mahi Pono and EMI, pointed out that the county of Maui and its mayor also supported the permit with some modifications. The permit would allow the county another year to work out how its East Maui Regional Community Board might take over the job of allocating water from the diversion system.<\/p>\n\n\n\n<p>\u201cAlignment is nice to see,\u201d Chipchase said.<\/p>\n\n\n\n<p>He also supported a request by the county to increase its allocation from the 6.25 mgd the Land Division proposed to 6.5 mgd.<\/p>\n\n\n\n<p>He then argued for raising the cap on the water Mahi Pono would receive to what the Land Board had authorized in the past, \u201cto truly maintain the status quo.\u201d&nbsp;<\/p>\n\n\n\n<p>\u201cWe would look at what was done last year: 3,263 [gallons per acre per day] against 12,734 acres,\u201d he said. That total of 41.55 mgd \u201cwould be perfectly consistent with the court\u2019s order,\u201d Chipchase said.&nbsp;<\/p>\n\n\n\n<p>The order\u2019s key word was \u201callow,\u201d not what happened to be used in a year when Mahi Pono was pumping significant groundwater, he argued.&nbsp;<\/p>\n\n\n\n<p>Chair Chang asked whether it was Mahi Pono\u2019s position that it would not be expanding any crops.<\/p>\n\n\n\n<p>\u201cWe would not exceed the allocation per acre against the number of planted acres,\u201d Chipchase replied.&nbsp;<\/p>\n\n\n\n<p>He also argued against the proposed permit condition to require a plan to line reservoirs, calling it \u201cnot the right approach.\u201d Deciding which reservoirs to line is \u201ca more complicated decision than saying &#8216;any one that takes water,\u2019\u201d he said.&nbsp;<\/p>\n\n\n\n<p>\u201cWhat is the effect and capacity of that lining?\u201d he asked, \u201cAll of those questions are appropriate for the long-term disposition.\u201d<\/p>\n\n\n\n<p>He later added that with regard to mitigating system losses, Mahi Pono has already spent more than $50 million to increase efficiency, resulting in a system loss somewhere around just 5.4 percent of the amount diverted.&nbsp;<\/p>\n\n\n\n<p>\u201cI think it\u2019s difficult to say it\u2019s not an efficient system,\u201d he said.<\/p>\n\n\n\n<p>Board member Kaiwi Yoon questioned Frankel about Chipchase\u2019s argument for using the 41.55 mgd allocation the Land Board had set in the past.<\/p>\n\n\n\n<p>Frankel noted that Chipchase was referring to how much water the Land Board had <em>allocated<\/em>. \u201cWe\u2019re talking about how much water was taken \u2026 which is the word that the court used,\u201d Frankel said, before also pointing out that the board\u2019s decision to allocate that higher amount was reversed by the Circuit Court.<\/p>\n\n\n\n<p>\u201cYou\u2019re instructed to not allow to them to take more than what was taken in the past. \u2026 The status quo means on the ground, not status quo that the court has thrown out,\u201d he added.<\/p>\n\n\n\n<p>Maui DWS deputy Kimo Landgraf testified in support of the permit as the Land Division had proposed, with the amendment to slightly increase the allocation to the county.<\/p>\n\n\n\n<p>Maui ranchers and farmers, as well as representatives from the local food industry association and Chamber of Commerce also testified in support of the permit.&nbsp;<\/p>\n\n\n\n<p>Members of N\u0101 Moku and the Sierra Club, and others, testified in opposition.&nbsp;<\/p>\n\n\n\n<p>Marti Townsend, a specialist at Earthjustice, argued that the Land Board lacked a required member who has a background in natural resource protection. \u201cThat puts a cloud over every decision you make. I want you to keep that in mind,\u201d she said.<\/p>\n\n\n\n<p>She also took issue with a scolding Chang gave after a chuckle erupted from the audience during Chipchase\u2019s testimony.&nbsp;<\/p>\n\n\n\n<p>\u201cI find it really rich,\u201d she said of the Land Board\u2019s joking and jovial tone (a complaint other testifiers raised). \u201cWe\u2019re not allowed to laugh or chuckle \u2026 when we\u2019re denied an opportunity to cross-examine,\u201d she said.<\/p>\n\n\n\n<p>Lucienne de Naie, chairperson of the Sierra Club on Maui, invited the Land Board to come see the streams in East Maui \u201cthat supposedly meet the IIFS.\u201d&nbsp;<\/p>\n\n\n\n<p>\u201cCome see the streams that are still waiting the mandated restoration. \u2026 We\u2019re still waiting because of the [diversion modification] permits. They\u2019re nobody\u2019s priority,\u201d she said.<\/p>\n\n\n\n<p>To a previous testifier\u2019s praise of Mahi Pono\u2019s provision of cheap alfalfa bales to the island\u2019s ranchers suffering from the drought, de Naie said, \u201cEverybody wants the ranchers to have enough feed, to not have Mahi Pono\u2019s trees drying. \u2026 But we need facts.\u201d<\/p>\n\n\n\n<p>She continued, \u201cIt sounds like you don\u2019t want those facts. That is just really, really sad.\u201d<\/p>\n\n\n\n<p>She also argued that the IIFS set for East Maui may be outdated.&nbsp;<\/p>\n\n\n\n<p>\u201cWe need do some of that adaptive management, to adapt to the fact we have longer droughts,\u201d she said.<\/p>\n\n\n\n<p>After public testimony ended, Maui Land Board member Doreen Canto said she supported the staff&#8217;s recommendation.<\/p>\n\n\n\n<p>\u201cIt\u2019s not an easy decision. I have \u02bbohana in East Maui,\u201d she said before making a motion to approve the recommendation. Board member Smith seconded her motion, which they later amended to accommodate Maui County\u2019s request for a little more water than the Land Division had recommended.<\/p>\n\n\n\n<p>Canto urged the county, in working toward a solution over the next year, to work with the various parties to reach some kind of an agreement.<\/p>\n\n\n\n<p>\u201cPlease \u2026 make sure community members are included,\u201d she said.<\/p>\n\n\n\n<p>With that, the remaining members of the board unanimously approved her motion. Board members Yoon and Denise Iseri-Matsubara had left the meeting by then.<\/p>\n\n\n\n<p><strong>Appeal<\/strong>s<\/p>\n\n\n\n<p>About two and a half weeks after the board meeting, the Sierra Club filed a notice of appeal with the 1<sup>st<\/sup> Circuit Court. And on January 5, N\u0101 Moku filed one, as well.<\/p>\n\n\n\n<p>In granting Mahi Pono and EMI the permit, the Land Board \u201cviolated the Environmental Court\u2019s instructions that BLNR ensure that \u2018[the Commission on Water Resource Management\u2019s] interim instream flow standards are in place and fully implemented before allowing more water to be taken from east Maui streams,\u2019\u201d the Sierra Club stated in its December 30 notice of appeal.<\/p>\n\n\n\n<p>According to the notice, the Sierra Club wants the Land Board\u2019s December 12 decision on the contested case hearing request and permit decisions reversed. It also wants the court to modify the permit to cap diversions by EMI and Mahi Pono at 24 mgd until a contested case is completed, and to order the board to follow the instructions the court gave in its October 29 decision in the case regarding water diversion permits granted to EMI in 2022.&nbsp;<\/p>\n\n\n\n<p>What\u2019s more, the Sierra Club wants the court to sanction the Land Board for failure to comply, and to appoint a master or monitor to ensure compliance with the court\u2019s orders.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Here we go again. On October 29, Environmental Court Judge Lisa W. Cataldo issued an opinion in the Sierra Club of Hawai&lsquo;i&rsquo;s appeal of a 2022 Land Board decision to grant revocable permits to Alexander &amp; Baldwin and East Maui &hellip; <a href=\"https:\/\/environment-hawaii.org\/?p=16902\">Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16905,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,13,546,28],"tags":[3],"class_list":["post-16902","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agriculture","category-board-talk","category-january-2026","category-water","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16902","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=16902"}],"version-history":[{"count":4,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16902\/revisions"}],"predecessor-version":[{"id":16972,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16902\/revisions\/16972"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16905"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16902"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16902"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16902"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}