DLNR: Law says A&B must prepare EIS for East Maui water diversion

Company is seeking 115 million gallons of water per day for diversified ag on the old sugar lands

The Maui News

Responding to an “overwhelming majority of comments” calling for the state — not Alexander & Baldwin — to prepare an environmental impact statement for water diversions in East Maui, the Department of Land and Natural Resources said Tuesday that state law requires the applicant to prepare the EIS.

A&B and its subsidiary East Maui Irrigation are applying for a 30-year lease for water from streams in Nahiku, Keanae and Huelo. The private entity is required to obtain the lease for developing, diverting, transporting and using stream water, which is a state resource.

The ditch, tunnel and siphon system were developed over a century ago to irrigate sugar crops in Upcountry and Central Maui. Although Hawaiian Commercial & Sugar Co. ended operations in December, A&B is seeking the lease for 115 million gallons of water per day for future diversified agriculture on the old sugar lands.

The Board of Land and Natural Resources, which will determine the fate of the leases, held hearings on Maui last month. The DLNR said Tuesday that it has “received numerous comments” from the public on the environmental impact statement preparation notice filed by A&B and EMI.

“The overwhelming majority of comments requested that the DLNR conduct the EIS instead of the private applicant,” the DLNR said in a news release. However, state law says that when an applicant proposes an action that requires the approval of an agency, the agency must require the applicant to prepare the EIS.

Becky Ashizawa of the Native Hawaiian Legal Corp., which has been representing East Maui taro farmers and Native Hawaiian practitioners for nearly two decades in their fight to have water restored to their streams, said Tuesday that state law was amended in 2012 to require the applicant to prepare the environmental assessment for actions that propose use of state land.

Prior to the change, the law required the agency, or in this case the DLNR, to prepare the environmental assessment, she said. So when A&B submitted its 30-year lease application in 2001 for its diversions from 33,000 acres of state land, the DLNR should have prepared the environmental assessment and EIS, Ashizawa said.

The legal corporation and its clients initially objected to allowing A&B to conduct the EIS “out of their genuine concern for the integrity of that study,” she said. They withdrew the objection when the law was amended.

The legal battles over one-year leases granted to A&B for the diversions have continued since 2001. A Honolulu circuit judge in January 2016 ruled those “holdover leases” from 2001-2014 a violation of state law. That ruling is currently being appealed.

Meanwhile, the Legislature passed a measure last session that allows A&B to continue leases for three years or until its pending application for water leases is resolved. Gov. David Ige signed the measure into law.

“The current public outcry that DLNR conduct the EIS instead of A&B stems from a continued erosion of trust and confidence in a lease application process that should have begun in earnest 17 years ago,” said Ashizawa. “Our clients’ expectation of prompt streamflow restoration is, as such, clearly justified and a necessary precursor to any restoration of their confidence in an agency whose stated mission is to ‘enhance, protect, conserve and manage Hawaii’s unique and limited natural, cultural and historic resources held in public trust.’ ”

The DLNR encouraged public participation in the environmental review process and urged that comments be submitted in writing to Wilson Okamoto Corp., Attn: Mr. Earl Matsukawa, 1907 S. Beretania St., Suite 400, Honolulu 96826 or by email to ematsukawa@wilsonokamoto.com.

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