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High court hears East Maui water case

Via videoconferencing, EIS, Upcountry water usage are hot topics

The East Maui Irrigation system, which collects water from East Maui streams and takes it to Upcountry and Central Maui, was the subject of a state Supreme Court proceeding Tuesday held via videoconferencing. This photo taken in 2016 is of a gate shut-off of the Wailua Stream.

If state water diversion permits in East Maui are invalidated, “an extreme water shortage” could result for the Upcountry Maui water system serving 35,000 residents, businesses, farms and Kula Hospital, attorneys said in arguing Tuesday before the state Supreme Court.

Nearly two-thirds of the average Upcountry consumption of 11.4 million gallons a day is diverted from streams in areas covered by four revocable water permits issued to Alexander & Baldwin and its subsidiary East Maui Irrigation Co., said Maui County Deputy Corporation Counsel Caleb Rowe. He said the water is delivered to Kamaole Weir treatment plant — which serves as a backup to Piiholo and Olinda treatment plants — and to Kula Ag Park through EMI’s Wailoa Ditch.

“Especially during low-flow and drier conditions, the Kamaole Weir facility is extremely important because it serves the entire community,” Rowe said. “Without ditch flow from the Wailoa Ditch during those low-flow periods, the county would be at an extreme water shortage.”

Native Hawaiian Legal Corp. attorney Summer Sylva, representing taro farmers and Native Hawaiian practitioners of Na Moku Aupuni O Ko’olau Hui, said the county could ask the lower court for an exemption if an injunction were granted to stop A&B from diverting up to 450 million gallons a day through the permits.

She said the diversions over 33,000 acres of mostly conservation state land have occurred in violation of the Hawaii Environmental Policy Act, which was expanded in 2000 to include cultural impacts.

“That expressed intent was to prevent further loss and destruction of important cultural resources overlooked in prior environmental reviews,” Sylva said. “Less than a year later, 2001, the land board flouted that law by granting one permit holder, our state’s largest and most impactful commercial diverter, above-the-law status. For the next 19 years, a law intended to protect East Maui streams, kupuna and their loi kalo, was ignored, inflicting irreparable harm upon our most precious of cultural resources.”

For the first time, a state Supreme Court oral argument was held through videoconferencing Tuesday, with the five justices and four attorneys participating from separate locations. The argument was broadcast live on the Judiciary’s YouTube channel, with a counter indicating more than 450 people were watching.

Shortly after the session started, it was recessed while technicians worked to restore Justice Richard Pollack’s lost internet connection. Several times, Chief Justice Mark Recktenwald reminded justices and attorneys to “unmute your mike” before speaking.

The hui has battled A&B, the state and county for more than a decade over the revocable water permits that allow A&B to develop, divert and use water from four areas of the Koolau Forest Reserve in East Maui. In 2001 and 2002, the Board of Land and Natural Resources voted to hold over the permits until the resolution of a contested case over A&B and EMI’s application for a long-term lease. Starting in 2005, the board annually voted to continue the permits for one additional year at a time.

After the vote to continue the permits in 2014, the hui filed a complaint in 1st Circuit Court on Oahu asking to have the permits invalidated, saying they shouldn’t have been continued without preparation of an environmental assessment.

In 2016, 1st Circuit Judge Rhonda Nishimura ruled the board’s yearly rollover of permits for 13 years didn’t trigger requirements of the state Environmental Policy Act but said the continuous uninterrupted use of the land violated the public lands management law. Last year, the state Intermediate Court of Appeals vacated the ruling and sent the case back to the lower court. Then the plaintiffs asked the Supreme Court to review the case.

Sylva said no comprehensive analysis or cultural impact analysis has been done on the 33,000 acres, which “is larger than the island of Kahoolawe.”

When Justice Paula Nakayama asked what would happen to Upcountry residents receiving water if the permits become void, Sylva said the county already had received relief from the lower court.

“This case has never been about challenging the County of Maui’s use or those of Upcountry Maui,” she said.

She said the impacts of the county’s use of water didn’t compare to “scale and magnitude and the cumulative effect” of A&B’s environmental and cultural impacts.

Justice Pollack asked if the board could immediately issue a temporary permit just for Upcountry use if the revocable permits were invalidated. “Wouldn’t that sidestep the problem entirely?” Pollack asked.

“Yes, entirely,” Sylva responded.

She said the land board reported that, except for A&B’s four permits, more than 300 other permits that were renewed complied with the Hawaii Environmental Policy Act. Sylva said she believed all of the permits were short-term permits for one year.

Deputy Attorney General Linda Chow, representing the land board, said a conservation use permit isn’t required because the A&B project started over 100 years ago, before the state Environmental Policy Act was in place, and was grandfathered in.

“There are 35,000 people Upcountry that rely on the water that comes from this system for their domestic use,” she said. “The board had to wrestle with balancing the various considerations of the public trust.”

Attorney David Schulmeister, representing A&B and EMI, said the county receives 6 to 8 million gallons a day of water.

He and Rowe disputed statements that the county could immediately receive a permit to continue receiving water if the A&B permits were voided.

“The County of Maui does not own the system or doesn’t have access to the system,” Schulmeister said. “Even if the board would try to issue a permit to the County of Maui in one day, which I don’t think could be done legally . . . that leaves the county in a position of we don’t have easement rights over the ditch, we don’t have the people to operate it . . . there is no legal authorization for use.

“Yet here we have a much more compelling need for it because of the tens of thousands of people in Upcountry who need the water.”

He said the water also is needed for agricultural use in Central Maui.

“Here we are, we’re in a pandemic, with all the tourism jobs are gone for who knows how long and you’re going to shut down people who are farming in Central Maui because there’s no authority under the public trust doctrine to continuing (the) use,” he said. “That would be absurd. And this court is the architect of the public trust doctrine. If the public trust doctrine cannot accommodate being able to continue an important use, then it’s designed to fail.”

In addition to several communities, businesses and government facilities, the Upcountry water system serves two Hawaiian Home Lands homesteads, about a dozen schools and Kula Hospital, which is the only health care facility Upcountry, Rowe said.

In a 2007 decision, the land board “went so far as to state that cessation of the county’s use of water from the surface areas and the Wailoa Ditch could result in a ‘public health crisis and economic catastrophe,’ ” Rowe said.

“The county does not have any feasible short-term solutions to replace the water provided by EMI from the licensed areas,” he said.

Even if the county was granted a permit to divert water, “the county does not own the ditch and we don’t have the institutional knowledge to take it over,” Rowe said.

“The only way that this could be fixed would be the county would have to either purchase the EMI ditch system from A&B, which currently we don’t have any funding for,” he said.

If government funds were used for a purchase, environmental reviews would be required just for the purchase, he said. If EMI was unwilling to sell, “the county would be required to take a lengthy condemnation proceeding,” Rowe said.

“None of this can be completed within the time frame necessary to protect the public should these revocable permits be invalidated,” he said.

Responding to a question from Justice Michael Wilson, Rowe said there was agreement that an environmental impact statement was required.

Wilson noted that Schulmeister had described “dynamic” issues, including the setting of in-stream flow standards, that had delayed the preparation. Wilson asked whether it might be “another four, five, six years, or 10 years — do you have an idea when the outside range might be when we would expect there might be an actual analysis of the impacts of the proposed project?”

Rowe said he didn’t know the timeline, but A&B recently had submitted notices about the environmental impact statement process.

“The county does take this seriously,” Rowe said. “It does understand that because it is a government agency it does have public trust responsibilities. But it also has a need directly to its consumers, to the citizens of Maui especially in times such as this where we’re reeling from a pandemic where schools are closed, where businesses are closed. The idea of possibly putting in jeopardy the possibility of those schools reopening because they don’t have access to water and businesses reopening because they don’t have access to water is very troubling to us. So we do think that the BLNR has undertaken the proper considerations in balancing those public trust considerations.”

Sylva said “A&B has had ample time to prepare an EIS to avoid any disruption in service.”

Chief Justice Recktenwald asked Sylva to address issues of possible effects if the court were to invalidate the permit, noting she said there was a “potential for an agreement to be reached between the county and A&B to keep the water flowing.”

“How can we be assured that would happen?” Recktenwald asked.

Sylva said the county could ask the lower court for a remedy.

“I’m struggling with this,” Justice Nakayama said. “You just said they can agree. But A&B owns the ditch system. If we’re going to say no, you don’t get any water. It’s your ditch system. You don’t get any water but Upcountry, the county, gets the water so they can run schools, the hospitals, the businesses, even in the valley. Why does A&B agree . . . if we’ve terminated all of their permits? Why do they have to allow anybody to use the ditch system that they own?”

Sylva said a mutual perpetual easement from 1938 allows the state to use the infrastructure.

Nakayama asked how the county would get the personnel to operate the system.

Sylva said she wasn’t “intimately familiar with Maui County’s resources, the kinds of alternatives” but the county could provide that information to the lower court in seeking a remedy that would address their needs.

Responding to a question from Justice Sabrina McKenna, Sylva said the high court could provide guidance to the trial court “about how to fashion appropriate remedies, and we encourage that it do that.”

“The county can avail itself most likely, because of its minimal impacts, of an exemption from an onerous EIS requirement,” she said.

She said hundreds of permit holders comply with Hawaii Environmental Policy Act requirements.

Compliance by A&B, “even after all these years, has the potential of preventing any further harm and restoring justice long overdue to East Maui,” she said.

Recktenwald said the court would take the case under advisement.

* Lila Fujimoto can be reached at lfujimoto@mauinews.com.

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