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A&B to apply for permit to continue to take water from E. Maui

Alexander & Baldwin confirmed Friday that it will be applying for a one-year revocable permit to continue to divert water from East Maui streams on state land.

A&B’s ability to draw water from its diversions, as it has for more than 100 years for its now shutdown sugar operations, had been thrown into jeopardy when a 1st Circuit Court in 2016 ruled the permits invalid. However, the Intermediate Court of Appeals earlier this year overturned the ruling.

In between, the state Legislature allowed A&B — and revocable permit holders — to continue the practice of obtaining annual permits from the state Board of Land and Natural Resources through 2019. The state Legislature this past session chose not to renew the permit practice in a contentious decision-making process.

A&B stopped growing sugar in 2016 and sold its 41,000 acres of sugar lands to Mahi Pono in December. Mahi Pono and A&B both own East Maui Irrigation Co., which manages the 70 mile diversion system of ditches, siphons and tunnels.

A&B’s current permit ends in December and the company’s actions regarding a renewal have been closely watched, particularly by Upcountry water users, because the county water department draws from the EMI system, and Mahi Pono, which has begun its agricultural ventures.

Taro farmers and Native Hawaiian practitioners have been battling A&B over the permit renewals. The diversion system has allowed only for intermittent stream flows, which has made taro farming and other native practices not possible.

“The recent Intermediate Court of Appeals decision enables the (Board of Land and Natural Resources) to renew existing state water permits, at its discretion,” said A&B spokesman Darren Pai on Friday. “We will be working with Mahi Pono to seek the renewal of the existing water permits, which are in A&B’s and EMI’s names, in order to continue to access state waters to support Mahi Pono’s farming activities as well as the County of Maui’s needs in Upcountry Maui.”

Shan Tsutsui, Mahi Pono senior vice president of operations, on Wednesday told The Maui News that A&B will apply for the revocable permit, though later in the day in an email he backtracked, saying “we are still in discussions and the exact path has not been determined yet.”

In June, a state Intermediate Court of Appeals decision opened the door to revocable permit applications once again. It vacated a 2016 1st Circuit Court judgment in favor of East Maui taro farmers and native practitioners and sent the case back to the lower court.

In the case Carmichael vs. BLNR and Alexander & Baldwin, the plaintiffs challenged month-to-month water permits granted by the state Board of Land and Natural Resources to A&B in 2000 that were annually renewed. The plaintiffs, represented by Native Hawaiian Legal Corp., argued that the permits, which allowed A&B to take the main flow of water from streams on state land, were a blank check without environmental reviews and not in keeping with rules for temporary permits.

In 2016, Oahu Circuit Court Judge Rhonda Nishimura ruled in favor of the plaintiffs, saying that the annual rollover of permits for 13 years was not temporary and thus in violation of the law for holdover permits.

Native Hawaiian Legal Corp. has said it will appeal the decision.

In the meantime, the state can continue to issue revocable permits as it has done prior to the ruling.

Mahi Pono did not answer questions Wednesday about how much water it will need for its agricultural operations. Officials did say that 8,000 gallons of water per acre per day will be needed for its first crop, red and yellow potatoes, on 40 acres in Central Maui.

The county advisory Board of Water Supply has established an investigative group to look into the county possibly purchasing the EMI diversion system or other options so that county water would not be tied up in legal disputes.

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