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Kahele: Long-term water permits on the horizon

Senator’s letter on county water agenda

Kaiali‘i Kahele – Advocates long-term water leases

For months, county water users Upcountry have been caught up in the shifting tides of the state Legislature, a lawsuit, a longtime contested case and the decision-making of private companies.

But one Hawaii island lawmaker foresees a better system of long-term water permits that would address that uncertainty, protecting water as a public trust and ensuring mauka-to-makai stream flow.

“We’re working with (state Department of Land and Natural Resources) to make sure we are ending the renewal of water revocable permits, and putting applicants — which the state has never done in its history — into long-term water leases. It’s always been revocable permit after revocable permit,” state Sen. Kaiali’i Kahele said Tuesday. “This is one of the most important things we need to do in the remaining years of the (Gov. David) Ige administration.”

The Maui County Board of Water Supply will discuss during its Thursday meeting a May letter from Kahele to Mayor Michael Victorino that urges the county to obtain its own water permit as “its own, independent authority.”

Typically, the county wouldn’t be the one to apply for a revocable permit, because it is not the diverter or the owner of the diversion system, county Water Supply Director Jeff Pearson and state DLNR officials said Tuesday.

An agricultural irrigation ditch flows near Pulehu Road. East Maui Irrigation, which brings water into Upcountry and Central Maui from East Maui through a diversion system, and its parent company, Alexander & Baldwin, have applied for another one-year revocable permit to take water from state land. This photo was taken in July. The Maui News / MATTHEW THAYER photo

About 36,000 customers rely on water from state land in East Maui via roughly 70 miles of ditches, siphons and tunnels of the East Maui Irrigation system. The state revocable permit that allows EMI to take water from state land for agricultural uses — and by agreement the county for domestic needs — expires on Dec. 31.

This permit has been under fire for more than a decade amid a legal dispute and more recently due to public outcry at the state Legislature over the requirements to gain rights to the vital resource.

Kahele, chairman of the Senate Water and Land Committee, offered up a bill at the state Legislature that would have denied EMI and its parent company, Alexander & Baldwin, from receiving another revocable permit but allowing other permit holders to apply. That bill died.

On Tuesday, Kahele agreed that much has occurred in relation to the water rights case since his letter was submitted at the end of the legislative session in May.

Mahi Pono, which purchased 41,000 acres of former sugar cane land from A&B in December and became half-owner of EMI in February, recently began planting potatoes and citrus, the first of other planned crops, in efforts to revitalize agriculture in Maui’s central plains in the wake of the end of sugar in 2016.

Although the company’s specific water needs were not made clear at recent state water commission meetings, to the dismay of Native Hawaiian practitioners and farmers, Mahi Pono’s recent agricultural plantings have helped the company gain favor, including with Kahele.

“The fact that they are farming, and they have crops in the ground is a good thing,” Kahele said. “We just want to make sure we’re not wasting water and we have mauka-to-makai stream flow, and generations of families in East Maui who have not had water or who have seen water depleted should see those natural streams and ecosystems fully restored.”

“I think the difference is that A&B sold their interest in EMI and sold the land to Mahi Pono,” he added. “I look at it as we are closing the chapter on A&B, and we are looking toward the future of Maui and the central plains of Maui.

“Clearly, Mahi Pono’s success is Maui’s success and the state’s success.”

Kahele said, though, that he is still waiting for an update on Mahi Pono’s farm plan and the company’s specific water needs.

For years, taro farmers and Native Hawaiian practitioners have been battling the state, along with A&B, over short-term permit renewals for water that initially was used to irrigate Hawaiian Commercial & Sugar Co. fields.

The diversion system drained so much water from East Maui streams that there only were intermittent flows, which has made taro farming and other cultural practices impossible, residents have said. A landmark state water commission decision last year mandated flow standards for specific East Maui streams in a move to restore consistent mauka-to-makai flows.

Another large development since Kahele wrote his May letter involves the Carmichael vs. BLNR and A&B case in the courts. Plaintiffs challenged month-to-month water permits granted by the BLNR to A&B in 2000 that were annually renewed for more than a decade. Represented by Native Hawaiian Legal Corp., taro farmers and practitioners 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.

A Circuit Court on Oahu in 2016 ruled for the plaintiffs, saying the annual rollover of permits for 13 years was not temporary and thus in violation of the law for holdover permits. In June, the Intermediate Court of Appeals vacated that decision, allowing applicants to seek revocable permits as it had done in the past. The Native Hawaiian Legal Corp. has said that it will appeal.

Recently, A&B told The Maui News that it will seek the renewal of its revocable water permits, which are in A&B’s and EMI’s names, in order to continue to access water on state land to support Mahi Pono’s farming activities and Maui County’s needs.

DLNR confirmed Tuesday that the company has filed its application for another one-year permit.

Pearson said that under an existing agreement with EMI, “DWS will continue to have water (for Upcountry residents) as long as they have a permit to divert.”

“The agreement also discusses revising the agreement for a longer term should they get a long-term lease,” he added.

Kahele said the decision on how the county should proceed with its water arrangement with EMI is under the purview of the county and the water department and what they feel is best for their short-term needs.

“The most important thing for me is domestic water use is absolutely provided and current water that Mahi Pono needs now is provided as well,” he said.

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