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State board OKs more water for Mahi Pono

A&B revocable permits subject of controversy for many years

The state Board of Land and Natural Resources on Friday unanimously approved a one-year permit allowing Alexander & Baldwin to continue to divert water from East Maui streams on state lands in 2020 — and increased the draw by 10 million gallons a day over staff recommendations.

The increased draw was for budding agricultural operations for Mahi Pono, which purchased A&B’s old sugar fields in Central Maui and Upcountry. Mahi Pono, which put its first crops into the ground in August, essentially received the amount of water it requested from the board.

BNLR’s six members unanimously agreed to a cap of 45 mgd. Of that amount, 5 mgd would supply various state projects and the county Department of Water Supply for municipal purposes, including domestic use.

A&B has never had a cap before on the one-year revocable permits, said its Executive Vice President of External Affairs Meredith Ching at the meeting in Honolulu. A&B has been granted one-year revocable permits for more than a decade.

The one-year revocable, holdover permits have been a source of contention for East Maui taro farmers and Native Hawaiian practitioners and environmentalists. For more than 150 years, A&B diverted the main flows of East Maui streams through a series of ditches, siphons and tunnels for sugar operations in Central Maui and Upcountry. The company closed its sugar business in 2016.

A&B would not have been allowed to apply for its current revocable permit beyond this year were it not for the Intermediate Court of Appeals in June overturning a lower court decision in a lawsuit filed by East Maui taro farmers and practitioners against the BLNR, A&B and the County of Maui.

In 2016, an Oahu Circuit Court judge ruled that the annual rollover of permits for 13 years at the time was not temporary and thus in violation of the law for holdover permits. The Native Hawaiian Legal Corp., which represents the taro farmers and native practitioners, has filed a request for the Hawaii Supreme Court to take up the case.

In the wake of the 2016 ruling, the state Legislature that year allowed for continuation of the rollover permit process until this year. The Legislature in contentious hearings did not renew the rollover permit process this past session.

Mahi Pono is in the process of applying for a long-term water lease and has put out a draft environmental impact statement for public review.

In June 2018, the state water commission set in-stream flow standards for East Maui streams diverted by A&B, through subsidiary East Maui Irrigation Co. (Currently, A&B and Mahi Pono share ownership of EMI.)

Some at Friday’s hourslong meeting questioned the impact of the BLNR decision on those flow standards for 27 streams, as well as 13 streams not included in the state water commission ruling.

“How can we make a reasonable decision on how much water goes to these new developers and (East Maui Irrigation), their partner, when we don’t know what all the water is, how much is where?” asked BLNR member Stanley Roehrig. “If there’s only a little bit available, then that affects how much goes to the new developers . . .

“This goes to the heart of our decision.”

State Department of Land and Natural Resource staff recommended a cap of 35 mgd; the Sierra Club of Hawaii sought a denial of the permit or a cap of 25 mgd, the amount currently being drawn; the Native Hawaiian Legal Corp. and Office of Hawaiian Affairs sought to have BLNR defer its vote until more information was gathered.

DLNR staff came up with its 35 mgd proposal by calculating the daily average of the six highest month’s draws from January 2017, after sugar operations ceased, to April. That average was 33.45 mgd. In addition, Mahi Pono said in May that EMI would draw between 30 to 35 mgd this year, which includes county water for about 35,000 Upcountry residents.

“The farm plan does not currently justify the use of a greater amount of water,” the staff report said, adding that if more water is needed for Mahi Pono’s farm plan, parties may ask the board to increase the cap.

During Friday’s meeting, Mahi Pono Operations Manager Grant Nakama described the company’s plans and water needs for next year. The company anticipates having more than 4,000 acres of non-GMO food crops in the ground, along with more than 12,000 acres of fenced pasture for livestock operations next year.

The company’s 12-month average irrigation requirement will be 45 mgd next year. He emphasized 45 mgd is an average, with 34 mgd needed at the beginning of the year but 56 mgd by year’s end.

Over the next three years, Mahi Pono will be investing more than $20 million in “more efficient irrigation systems,” Nakama said.

“In total, we have invested over $60 million for farming operations,” he said. “This is a lot of money to invest before you even have your first harvest.”

Mahi Pono has 70 acres of potatoes planted, with an anticipated yield of 20,000 pounds of potatoes per planted acre, Nakama said. Harvesting will begin next month. Other crop plans include orchard plants, such as macadamia nut and lime, according to published reports.

Native Hawaiian Legal Corp. attorney Alan Murakami called the water numbers presented by Mahi Pono “quite alarming.”

“We want really firm figures for what exactly the crops are, what water it takes for them to grow. It’s a very minimal thing to consider,” he said.

Murakami pointed that the board is making a decision on a private commercial operator and not a public trust purpose. He urged thorough preliminary steps be taken, such as identifying customary practices that could be impacted by the diversions.

“I would love to see the ideal of a vibrant local industry. Absolutely, even my clients would say that, but we have to do this the right way,” Murakami said.

He said the board has two months left for a more thorough review before A&B’s current permit expires.

“I don’t know if it’s enough time, but we’ve been before you for 18 years already,” he said.

For the four revocable permits approved for 2020, the lease will be $19,622.05 per month, according to the staff report. This is up slightly from current charges of $19,247.02 per month.

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

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