Cry me a river.<\/p>\n
That\u2019s basically what attorneys with the Native Hawaiian Legal Corporation had to say about arguments made last month by Alexander & Baldwin, Inc.\u2019s attorneys that it would cost too much \u2014 \u201cseveral million dollars\u201d \u2014 for it to install water meters at every stream diversion on state land that feeds into its East Maui Irrigation System.<\/p>\n
Those meters, which the NHLC wants the state Board of Land and Natural Resources to require A&B to employ, would provide the data necessary for the board and the state Commission on Water Resource Management (CWRM) to determine how much water is taken from each stream, thereby enabling them to determine more accurately how much should remain in the streams to protect public trust purposes. Currently, the company provides the state only with information on an estimated aggregate amount of water it diverts to Maui County and to the company\u2019s agriculture fields in Central Maui.<\/p>\n
In addition to arguing that the meters are \u201ccost-prohibitive\u201d and \u201cphysically challenging\u201d to install, A&B\u2019s attorneys have called the NHLC\u2019s request excessive and unnecessary, noting in a filing with the Land Board last month that CWRM \u201cis already tasked with setting interim instream flow standards (IIFS) to satisfy the public trust.\u201d But in a May 20 response, the NHLC challenged A&B\u2019s claims of financial hardship, noting that the company is a two billion dollar corporation that has recently spent \u201cmillions and millions of dollars\u201d buying real estate in Kailua, Kahala, and Manoa on O`ahu. What\u2019s more, the NLHC argues, the company has for decades been paying the state about a quarter of a penny per 1,000 gallons of diverted water and charging the county 24 times that amount to meet the domestic needs of Upcountry Maui. In the meantime, the NHLC\u2019s client, Na Moku Aupuni o Ko`olau Hui, has argued that its members lack sufficient water for their taro farms in East Maui and that flows remaining in the diverted streams are inadequate to provide sufficient habitat for culturally important stream organisms.<\/p>\n
\u201c[A&B] has been allowed to plunder public waters for over a century, but has never been required to measure how much water it hauls from each stream daily. Neither the BLNR nor the CWRM can make prudent decisions about the use of public streams without basic information as to how much water is being taken,\u201d the NHLC stated, adding that Board of Water Supply customers statewide must install meters before any water is supplied.<\/p>\n
On June 24, as part of the contested case over A&B\u2019s 2001 request for a long-term license to continue diverting East Maui streams, the Land Board will hear arguments from both sides about the meters, as well as Na Moku\u2019s other recent requests that the board do the following:<\/p>\n
Filings to the Land Board last month from A&B and Na Moku suggest the hearing will be lively, to say the least.<\/p>\n
Halting the Water<\/i><\/b><\/p>\n
In January, the 1st Circuit Court ruled that the four permits governing A&B\u2019s water diversions were invalid, prompting the state Legislature to pass House Bill 2501 to circumvent the court\u2019s ruling to keep the water flowing in A&B\u2019s ditches while its subsidiary Hawaiian Commercial & Sugar completes its final sugarcane harvest and it prepares to transition its fields into diversified agriculture. The bill would allow A&B to obtain a \u201choldover\u201d of its diversions until a final decision is made on its lease application, so long as the Land Board determines the holdover is consistent with the public trust doctrine. Gov. David Ige had not signed the bill by press time.<\/p>\n
Whether the bill becomes law or not, the Land Board must decide whether A&B\u2019s continued diversions comply with the public trust doctrine, which calls for the protection of instream uses and the provision of water to meet traditional and customary practices, among other things. As the NHLC pointed out in its May 20 filing, the Hawai`i Supreme Court\u2019s December 2015 ruling in the legal challenge to the Conservation District permit allowing construction of the Thirty Meter Telescope states, \u201c[I]t is manifest that a government body is precluded from allowing an applicant\u2019s proposed use to impact the public trust in the absence of an affirmative showing that the use does not conflict with those principles and purposes.\u201d<\/p>\n
In arguing for the continuation of the status quo, A&B\u2019s attorneys noted that the integrated nature of the East Maui Irrigation system makes it impossible to isolate the sections that provide water to the county while \u201cshutting down everything else.\u201d The attorneys added that the company also needs to be able to access the permit areas to maintain those portions of the ditch system that serve the county.<\/p>\n
\u201cIf [East Maui Irrigation Co., A&B\u2019s subsidiary] were to stop maintaining the access roads to such portions of the system \u2026 they would become impassable due to overgrowth within just a few months. Reopening the roads after an extended period of non-maintenance will then again take several months and would end up being more costly than simply continuing to maintain them,\u201d the attorneys wrote.<\/p>\n
Altering the irrigation system to completely restore stream flow would take years and cost millions of dollars, and would cost millions more to reverse should diversions be allowed to resume in the future, they continued. They also raised a new argument not mentioned during any legislative hearings: Requiring diversions to cease would be inconsistent with a March 18, 1938, agreement between the Territory of Hawai`i and A&B, which gives the company the \u201cright to access and operate diversions on state land.\u201d<\/p>\n
A&B\u2019s attorneys pointed out that the company plans to permanently restore water to all streams important to East Maui taro farmers and that it supports a recommendation from the hearing officer in a contested case before the Water Commission on East Maui IIFS that some 18 mgd be immediately released into several East Maui streams while the commission decides on revised flow standards that reflect A&B\u2019s change in current and future water needs.<\/p>\n
The Maui DWS joined A&B\u2019s memo in opposition to the NHLC\u2019s proposals.<\/p>\n
Delay<\/i><\/b><\/p>\n
In its response to A&B, the NHLC attorneys disputed each and every one of the company\u2019s arguments against halting the diversions. For one thing, they note, the Circuit Court\u2019s decision invalidated the company\u2019s permits to divert the water. They also argued that the 1938 easement agreement does not give A&B the right to divert East Maui streams and they questioned the company\u2019s claims that it is incapable of limiting ditch flow to meet only the county\u2019s needs.<\/p>\n
\u201cThere is no legal basis for A&B to be diverting any water within the areas covered by revocable permits [S7263-7266] except for those diversions needed to provide up to 8.4 million gallons of water daily to the Maui County Board of Water Supply, as ordered by the court,\u201d they wrote. \u201cFurthermore, all the evidence before the BLNR demonstrates that A&B has no current use for any of the water taken from East Maui.\u201d<\/p>\n
They cited a number of state Supreme Court decisions that require water applicants to, among other things, demonstrate their actual needs and the absence of practicable alternative sources. The NHLC noted that A&B has the ability to pump some 70 mgd of groundwater. (The hearing officer in the Water Commission\u2019s contested case hearing estimated the company could safely pump more than 80 mgd from its brackish well.)<\/p>\n
A&B\u2019s claims that it has moved to permanently restore certain streams and that it supports the interim release of 18 mgd are unsupported, they continued.<\/p>\n
\u201cWithout any evidence \u2014 and without any numbers \u2014 A&B claims that \u2018significant amounts of water have been returned to East Maui streams.\u2019 How much water has been returned to each stream?\u201d they asked.<\/p>\n
With regard to the interim release, they wrote, \u201cA&B\u2019s agreement comes with a plethora of vague caveats, making its promises unenforceable. Actual implementation of the interim releases is subject to its unilateral concerns regarding \u2018weather conditions\u2019 (no releases if there is a drought?) and operational considerations (A&B wants to continue diverting water for its operations?) \u2026 In any case, the hearing officer\u2019s recommendation provides far less water than the streams require.\u201d<\/p>\n
\u201cA&B\u2019s reasons to deny the halting of diversions boil down to one word: delay. A&B wishes to delay its day of reckoning as long as possible,\u201d they wrote.<\/p>\n
Should the Land Board decide not to halt the diversions or reject A&B\u2019s application, the board should at least require the company to install the meters, they argued.<\/p>\n
\u201cAs a public trustee, the board must demand all information necessary to safeguard the resource. \u2026 If A&B does not provide that information, it should not be permitted to take water from the streams,\u201d they wrote.<\/p>\n
\u201cIf A&B reacts petulantly to the terms of use that the BLNR imposes, then restore East Maui streams and let A&B cry itself a river of its own making,\u201d the NHLC concluded.<\/p>\n
\u2014 Teresa Dawson<\/i><\/b><\/p>\n
Volume 26, Number 12 June 2016<\/p>\n","protected":false},"excerpt":{"rendered":"
Cry me a river. That’s basically what attorneys with the Native Hawaiian Legal Corporation had to say about arguments made last month by Alexander & Baldwin, Inc.’s attorneys that it would cost too much — “several million dollars” — for … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":8041,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[402],"tags":[3],"class_list":["post-8994","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-june-2016","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/8994","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=8994"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/8994\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/8041"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8994"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8994"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8994"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}