BLNR denies contested case for A&B water leases

East Maui Irrigation Co. may continue to divert stream water

East Maui Irrigation Co. stream diversions were built in the 1870s. The state Board of Land and Natural Resources denied a request for a contested case hearing, allowing Alexander & Baldwin subsidiary EMI to continue to divert and lease water from streams on public lands for now. -- State Department of Land and Natural Resources photo

The state Board of Land and Natural Resources unanimously rejected Friday a request from the Sierra Club for a contested case hearing on Alexander & Baldwin’s request for time extensions for water-use permits from streams on state lands in East Maui.

Much of the board’s time was taken up listening to legal arguments for and against the contested case hearing from Sierra Club of Hawai’i attorney David Kimo Frankel and A&B attorney Yvonne Izu.

Frankel told board members that with a contested case, meters could be installed on affected East Maui streams to give board members better information upon which to make a decision. Also, he said, there are issues Sierra Club members would like addressed through a contested case process; otherwise they’re left being “marginalized” and their concerns “ignored.”

In a memorandum to the land board, Frankel said Sierra Club members enjoy the right to use water from free-flowing streams that run by property where club members live or own land. Club members have riparian and appurtenant water rights, which are property rights protected by the state constitution.

Izu said Sierra Club members have taken numerous opportunities to make their concerns known, and, although they assert property rights, their interests are no different from those of the general public. Their property interests don’t rise to the level in which they’ve been deprived of a property right without due process of law, she said.

If the contested case were granted, the public interest would be adversely affected, Izu said, because A&B subsidiary East Maui Irrigation Co. would no longer be able to take ditch water and deliver it to the county’s Kamole Weir water treatment plant, which serves 35,000 Upcountry residents, schools, Kula Hospital and the Kula Agricultural Park.

Commenting on the land board’s denial of the contested case proceeding, A&B spokesman Darren Pai said Friday: “We appreciate the board’s decision. It enables us to continue to provide water to the County of Maui for its Upcountry residents and farmers, and to make continued progress toward our vision of establishing a patchwork of sustainable, viable diversified agricultural farms across the former (Hawaiian Commercial & Sugar Co.) footprint.”

Sierra Club Hawai’i Chapter Director Marti Townsend said the club could appeal the board’s decision to state circuit court, but she declined to say whether that would happen.

“That’s one of the options,” she said.

The state law that allows A&B to receive annual time extensions of permits to divert water on public lands expires in six months, Townsend said, and members of the public can expect A&B to return to the Legislature next year to allow temporary permitting to continue.

“Unfortunately, the land board is complicit in authorizing unnecessary diversions of public water for private profit,” she said. “There is enough water in the East Maui watershed for everyone.”

The land board’s action showed it was “abdicating its responsibility to protect streams and water for taro farmers,” she said.

Huelo resident and statewide Sierra Club Vice Chairwoman Lucienne de Naie said her friends and neighbors are affected by A&B stream diversions that can leave waterways without stream flows in dry seasons.

Residents who live along streams have access to domestic water and like to recreate in streams where they swim and teach their children about nature, de Naie said.

“It’s something that’s important to them,” she said.

She added that she hopes the Sierra Club appeals the land board’s denial of the contested case proceeding because many East Maui residents who live below state water lease regions have been left out of the decision-making process.

“I don’t think their stories have been told,” she said.

In his memorandum, Frankel said Sierra Club members in East Maui draw water from streams for residential and farming purposes.

“They enjoy the streams in the license area for their recreational and spiritual importance,” he said. “This includes, but is not limited to, hiking, fishing, swimming and other recreational uses in and around the streams of the proposed license area.”

Under the extended water permits, rents for revocable permits will increase from:

• $1,698.32 to $2,478.15 per month for Honomanu Stream.

• $6,588.40 to $9,613.65 for Huelo Stream.

• $3,476.72 to $5,073.15 for Keanae Stream.

• $1,426.88 to $2,082.07 for Nahiku Stream.

A DLNR staff report said determining fees is complicated because standard appraisal methodologies may not work well in establishing charges for water. There are few comparables that an appraiser can use, for example.

But staff members said they intend to hire an appraiser to tackle the valuation issue.

* Brian Perry can be reached at bperry@mauinews.com.