Among other terms in the agreement, Mahi Pono is requesting 11.22 million gallons per day to grow non-GMO food on 3,740 acres between Kuihelani and Maui Veterans highways — down from 36.29 mgd requested a decade ago by now defunct predecessor Hawaiian Commercial & Sugar Co.

A $250,000 investment on Mahi Pono’s part will install more in-stream, in-system and on-farm measuring equipment.

Also, the company emphasized that the surface water allocation is nontransferable and can be only used for ag purposes, “which hopefully lays to rest the unsubstantiated fear that Mahi Pono was going to use water for commercial real estate development,” said Shan Tsutsui, senior vice president of operations.

The new diversified agriculture company, which one year ago in December bought 41,000 acres of former sugar cane land from Alexander & Baldwin, presented terms of the deal Tuesday at a state Commission on Water Resources Management hearing in Wailuku.

Shan Tsutsui

Representatives for the hui and OHA during testimony Tuesday said the agreement signals a possible turning point for ag but cautioned that only time will tell.

“We appreciate this ability to work out this agreement and stipulation with Mahi Pono and we look forward to the work that starts today in ensuring that these commitments are met and Mahi Pono raises the standard for a new chapter in the history of agriculture in this region,” said Isaac Moriwake, Earthjustice lawyer and hui collaborator.

Pamela Bunn, attorney for OHA, another hui collaborator, echoed, “the hard work starts today.”

“In the meantime, OHA looks forward to a new era of transparency and accountability and thanks both the hui and Mahi Pono,” she said.

Na Wai ‘Eha, or the “Four Great Waters” of Waihee River, Waiehu Stream, Wailuku River and Waikapu Stream, had long been diverted for sugar cane operations.

The state Commission on Water Resource Management takes testimony Tuesday at the J. Walter Cameron Center.

The hui, comprising Native Hawaiians, kalo farmers and environmental supporters, was founded in 2003 to help “reverse century-old injustices” of streams being “diverted, dried out, abused and commodified for monocrop agriculture” by plantation companies, the group said in a statement Tuesday.

Mahi Pono was recently granted by CWRM the right to take over the water permit requested a decade ago by HC&S, which thrust the new company into a contested case over Na Wai ‘Eha water rights that dates back 15 years.

In 2004, the hui petitioned CWRM to restore mauka-to-makai streamflow for Na Wai ‘Eha; as a result, Maui’s first interim in-stream flow standards were established for Na Wai ‘Eha in 2010 and 2014.

When HC&S closed in 2016, the hui again petitioned CWRM to increase flow standards and urged the panel to finalize water allocations for kuleana kalo and diversified farmers via the water use permit applications process that began in 2009.

During an August hearing, Mahi Pono, despite presenting unclear water needs, suggested they might try to reopen a portion of the case, potentially prolonging it.

Attorney Kapua Sproat (far left) and former Hui o Na Wai ‘Eha President John Duey listen to closing arguments in a contested case Tuesday at the J. Walter Cameron Center.

In a turn of events that both sides said cannot be disclosed in specifics, the company and the hui reached an agreement, which was lauded by the commission Tuesday.

“When we were as a commission last time, there were some questions about reopening the contested case and findings of fact, and I think the commission kind of suggested thinking hard about how much water you guys would need,” said commissioner Kamana Beamer. “It seems like an excellent compromise.”

After Tuesday’s hearing, Hokuao Pellegrino, hui board president, said the “robust” settlement may have been impacted by community involvement. The hui organized a Na Wai ‘Eha water rights rally last month at the state building that drew hundreds.

“At first, we were talking apples and oranges, or rather, kalo and potatoes,” he said. “I think a lot of what changed was community pressure. Nothing changed on our part.”

After the hearing, Moriwake said the settlement is an important step forward and confirmed he is hopeful Mahi Pono will make good on its promises.

He added, though, that the agreement is “just a piece of paper” and action will be the determinant.

Under the surface water use permit application agreement, Mahi Pono has also agreed to:

• Provide comprehensive and continual monitoring and public reporting of data relating to its water diversions, deliveries and uses, subject to independent verification by the commission.

• Bypass the Waiale Reservoir, which will avoid the reservoir’s significant seepage losses of 6 to 8 mgd.

• Close the low-flow intake for the Spreckels Ditch on Wailuku River.

• If requested, assist in the restoration of the po’owai of the North Waihee ‘auwai in partnership with hui and the Waihee community.

• Seek opportunities for native shrubland ecosystem restoration with native species conducive to that region.

• Work in good faith with the hui and OHA to facilitate communication and public transparency. This will include allowing site visits by representatives of the hui and OHA to diversions, ditches and farm operations on a quarterly basis or more.

• “Diligently” investigate losses in Mahi Pono’s sections of the water delivery system, dedicating $250,000 to this effort.

The company also said it supports the hui’s and OHA’s recommended interim in-stream flow standards.

The hearing Tuesday presented final arguments in the long-contested case. Now, the commission will deliberate and decide on interim in-stream flow standards, as well as water allocations for Mahi Pono and other companies, the county, kuleana kalo and diversified farmers.

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

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