Maui water board mulls turning EMI water transmission system into public utility

Panel wants alternative to relying on corporate entity to deliver water

Deputy Corporation Counsel Caleb Rowe discusses how the state Intermediate Court of Appeals ruling Tuesday may give the county’s Department of Water Supply more time to deal with a potential problem with water drawn from Alexander & Baldwin’s ditch system at Kamole Weir. Board of Water Supply Member Dean Frampton looks on Thursday. The Maui News / KEHAULANI CERIZO photo

WAILUKU — The Board of Water Supply discussed Thursday the possibility of Maui County purchasing and maintaining the East Maui Irrigation water delivery system and turning it into a public utility.

The water diversion system owned by Alexander & Baldwin and Mahi Pono uses miles of tunnels, ditches and siphons to bring East Maui water westward for agricultural and public domestic uses.

Public water users Upcountry have been in limbo after a bill that would have extended water permits for A&B and utilities and small farmers statewide failed at the state Legislature in May. A&B currently holds a permit to take water from East Maui streams on state land; because the bill failed, renewal of that permit, which expires in December, was put in question.

A state Intermediate Court of Appeals ruling Tuesday, though, opens up the possibility of A&B applying for another one-year revocable permit with the state, as the company has for more than a decade.

The board placed on next meeting’s agenda the discussion and formation of a subcommittee or temporary investigative group that would study purchasing and maintaining the EMI water delivery system and the watershed and look into “other alternatives to get water to the end users.”

In creating the group, “the public knows we are trying to find an alternative way of delivering clean, safe water to them as a public utility instead of a weird situation where a corporation pretty much tells us what, when and how we’re going to get our water, which is kind of spooky,” said member Norman Franco, who led much of the discussion.

Edward Kushi, Corporation Counsel first deputy, described how the advisory group, which isn’t subject to the Sunshine Law, may work. Members and chairperson for the panel would be chosen, scope of investigation would be defined, and the group would potentially offer a report to the board.

After review and possible action on the report, the board would have to decide whether to submit it to the administration or to the County Council and either body may or may not accept it, he said.

He added that only the council could approve a condemnation of property from a private owner.

Kushi added that A&B sold half its interest in EMI to Mahi Pono in its sale of old sugar fields.

“I need to say this, too. . . . Now they know you’re forming a new group to buy them out? How is that going react?” Kushi asked.

Later, Franco emphasized that he is not suggesting condemnation but rather data gathering so the board and the community can make informed decisions.

“I think if we look at our role as acting on behalf of the general public and what’s in their best interest, we should look at all alternatives,” he said. “It’s not a confrontational thing, it’s an educational thing; and it’s not personal, it’s a numbers game. . . .

“We’re not trying to take anything away from Mahi Pono . . . We have to give them a chance to make their case.”

He added that the county and community must look at the long-term effect of water systems and needs, especially since the island is growing.

Member Buddy James Nobriga suggested that the water board look beyond EMI to study whether additional options for water delivery exist.

“There may be a new system or way” other than EMI that can bring water from the start to the end user, he said.

Other members, including Dean Frampton and Nobriga, said they wanted to give Mahi Pono a chance to offer water delivery options before forming a subcommittee.

Water Supply Director Jeff Pearson said an information-gathering subcommittee wouldn’t deter the professionals at Mahi Pono and the water discussions the company and the county are having.

“It won’t deter any discussions that we’re having,” he said. “I think Mahi Pono is looking toward the community and the Department of Water Supply.”

Members unanimously approved adding the discussion and formation of a subcommittee or temporary investigative group to the next meeting’s agenda. Chairwoman Shay Chan Hodges said she hoped the public would testify on the item. Water board meetings are at 1:30 p.m. on the third Thursday of every month in Wailuku.

Talk of potentially purchasing EMI comes in the wake of a Tuesday state appeals court ruling that overturned a 2016 water rights decision in favor of East Maui taro farmers and Native Hawaiian practitioners. The lawsuit questioned the legality of extending revocable water permits without environmental impact studies over more than a decade.

Hawaii’s Intermediate Court of Appeals ruling, which sends the case back to the lower court for clarification, opened the door for the state Board of Land and Natural Resources to continue to issue revocable water permits as it had done in the past.

Deputy Corporation Counsel Caleb Rowe put the ruling in Carmichael vs. BLNR and Alexander & Baldwin into perspective for board members. The department has relied on A&B’s revocable permits to supply East Maui water via EMI to about 35,000 residents in Upcountry.

Initially on the meeting agenda was discussion about “alternative options for ensuring water delivery” since the May failure of the water rights bill left the county and its users in a lurch.

“The good news for us is that it (the appeals court ruling) buys us some time,” Rowe said. “The litigation is a very long process. We have some flexibility time wise about how we are going to figure out this issue.”

The plaintiffs said they plan to appeal to the state Supreme Court.

Testifier Dick Mayer, a Kula resident, urged the board to make public any county agreements with EMI and A&B related to Kamole Weir and Waikamoi, especially if and when they are being renegotiated. He also said the board should request a copy of A&B’s draft EIS that is supposed to be ready in July when they negotiate licenses for Kamole Weir.

* Kehaulani Cerizo can be reached at kcerizo@mauinews.com.