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BLNR OKs E. Maui water for Mahi Pono

Controversial permits allowed for 2021; long-term lease sought

Jerome Kekiwi Jr., president of Na Moku Aupuni o Ko‘olau Hui, whose members are the lineal descendants and residents of Keanae-Wailuanui in East Maui, discussed the controversial history of water use and the East Maui Irrigation system while testifying before the state Board of Land and Natural Resources on Friday. This is a screenshot taken from the meeting. — The Maui News / KEHAULANI CERIZO photo

Following staff recommendations, the state Board of Land and Natural Resources on Friday unanimously approved another round of one-year permits, allowing the diversion of water from East Maui streams on state land in 2021 for Mahi Pono crops.

More than 100 pages of testimony were submitted to the board on the request by Alexander & Baldwin, which owns the water diversion system with Mahi Pono, on the renewal of the temporary, revocable permits. The permit process is a flashpoint for Native Hawaiians and environmentalists that dates back decades.

The board last October approved the permits for 45 million gallons a day based on 2020 diversified farming projections for Mahi Pono, which in late 2018 purchased A&B’s old sugar fields in Central Maui and Upcountry. Of that amount, 5 mgd was designated for various state projects and the county Department of Water Supply for municipal purposes, including domestic use.

Mahi Pono Operations Manager Grant Nakama testified during the board meeting Friday that the farming company’s water use throughout 2020 has averaged less than 25 mgd.

The gap reflects COVID-19’s impact on the company’s planting schedule and Mahi Pono’s temporary shift to produce row crops and food in the wake of the pandemic, he added.

The East Maui Irrigation system collects water from East Maui streams and takes it to Upcountry and Central Maui. This photo taken in 2016 is of a gate shut-off of the Wailua Stream. The state Board of Land and Natural Resources approved Alexander & Baldwin’s and Mahi Pono’s request for a permit to divert water from state land in East Maui in 2021. — The Maui News / KEHAULANI CERIZO photo

“This shortfall reflects that we will only divert water that we absolutely need in order to support our crops and to deliver water to the county DWS and for our tenants and fire suppression purposes,” Nakama said.

He noted that Mahi Pono has supplemented surface water with ground water usage during exceptionally dry conditions.

Projecting into next year, Nakama said Mahi Pono will have 2,100 acres of crops in the ground and 12,000 acres for Maui Cattle Co. operations. He said by the end of 2021, the company will have 5,700 acres in the ground.

“Moving into 2021, we will continue to responsibly divert water, only diverting what we need,” he said.

A&B, whose water permits are nontransferable, has been granted one-year revocable permits for more than a decade for sugar operations, which shut down in 2016.

Mahi Pono has sought to differentiate itself from A&B’s plantation-era water use, which has been a source of contention for many years.

Testifier Jerome Kekiwi Jr., president of Na Moku Aupuni o Ko’olau Hui whose members are the lineal descendants and residents of Keanae-Wailuanui in East Maui, said he appreciated the community outreach efforts of Mahi Pono’s Mark Vaught, manager of water resources.

He added that it’s unfortunate that the hui, along with government, private business and other communities, “have inherited a legacy in EMI’s ditch system where the environment and people were exploited and destroyed without accountability.”

“Dynamite was used to blow the mountains apart, create and connect these dynamited craters to collect and transport water out of the watershed,” Kekiwi said. “The people’s whose lives depended on this water were also torn apart.”

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.

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.)

A&B would not have been allowed to apply for its current revocable permit beyond last year were it not for the Intermediate Court of Appeals in June 2019 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, requested and received approval for the Hawaii Supreme Court to take up the case.

Summer Sylva, Native Hawaiian Legal Corp. attorney, said Friday that the groups are awaiting the high court’s ruling in the case, which seeks to “end the BLNR’s misguided practice of renewing A&B/EMI’s one-year revocable permits for the past 30-plus years without the benefit of environmental review.”

“None dispute that use of state land via a long-term lease requires compliance with HEPA (our state’s environmental review law),” she said in an email to The Maui News. “But call the same use for the same duration of time by another name — in this case, revocable permits — and suddenly environmental review is cast aside. Respectfully, that makes no sense; no sense to anyone but the BLNR.”

“We hope impending court rulings provide the BLNR with the guidance and clarity they urgently need to properly discharge their public trust duties,” she added. “Until then, this practice is bound to continue to the detriment of East Maui’s natural and cultural resources.”

In the wake of the 2016 ruling, the state Legislature that year allowed for continuation of the rollover permit process until 2019. The Legislature in contentious hearings last year did not renew the rollover permit process.

Mahi Pono is in the process of applying for a long-term water lease and said Friday that it is close to finishing its environmental impact statement.

For the four revocable permits approved for 2021, the lease will be $19,863.47 per month, according to the staff report.

This is up slightly from the current charges of $19,622.05 per month.

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

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