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Court upholds state approval of water permits

Sierra Club said stream diversion permits violated environmental law

Water flows through a diversion in East Maui. In a ruling on Tuesday, a First Circuit Court judge upheld the state’s approval of controversial revocable water permits that allowed Alexander & Baldwin to divert from East Maui streams. The Sierra Club had sought to invalidate the permits, saying they violated environmental law. Photos courtesy of DLNR

A court has sided with the state and other defendants in a case in which the Sierra Club sought to invalidate two state-approved revocable water permits that allowed Alexander & Baldwin to divert from East Maui streams for Mahi Pono farming needs.

In a ruling filed Tuesday, First Circuit Court Judge Jeffrey P. Crabtree upheld the state’s position, saying it did not fail in its obligation to protect water sources while maximizing reasonable beneficial use of the resources.

The state Board of Land and Natural Resources approved two separate one-year revocable permits in 2018 and in 2019 for Alexander & Baldwin and East Maui Irrigation, which allows water to be diverted from East Maui streams for Mahi Pono agricultural operations, county water needs and commercial uses.

Sierra Club challenged the BLNR, state Department of Land & Natural Resources, County of Maui, A&B and EMI, alleging they violated Hawaii environmental law and claiming the state breached public trust duties to protect water when it approved the temporary permits.

The plaintiffs sought to keep water from being diverted until an environmental review is conducted.

East Maui streams have long been a source of contention, with Native Hawaiian rights and environmental advocacy groups seeking to stop diversion of the streams for Central Maui farming needs.

Crabtree said in the order that Hawaii law “imposes a dual mandate on the State to both protect water resources and to make maximum reasonable beneficial use of the State’s water resources.”

“Sierra Club raised legitimate questions and concerns over the BLNR’s decisions on the two hold-over Revocable Permits in 2018 and 2019; however, several broader principles and factual issues guide the court’s conclusion that the BLNR did not fail in its duties under either a constitution balancing test or under its public trust duties,” he said.

Crabtree added that the BLNR understood that Mahi Pono’s new farming plans on Maui needed reliable amounts of water.

Mahi Pono “was essentially starting from scratch, during a historic change, in a new market where the actual use of water depends on variables that Mahi Pono has little control over,” the order said. “Realistically, the court concludes that Mahi Pono deserves some time and mileage to gain experience and figure things out.”

Shan Tsutsui, Mahi Pono chief operating officer, said Wednesday afternoon that the company is pleased with the court’s ruling.

“Since acquiring more than 41,000 acres of former sugarcane land in 2018, Mahi Pono has been working towards diversifying agriculture in Central Maui, increasing local food production, and helping to achieve food security for our island, and all of Hawaii,” he said via email. “This year we anticipate planting more than 3,500 acres with food crops, which includes avocados, onions, potatoes, papayas, citrus, kale and cauliflower. And slowly the community will be able to find more of our Maui Harvest-branded produce available in more retail stores and restaurants on Maui and across the state.”

The permit process has been a flashpoint for Native Hawaiian activists and environmentalists that dates back decades.

For more than 150 years, A&B diverted East Maui streams for sugar operations via its water delivery system under EMI.

The state water commission in 2018 set in-stream flow standards to protect the streams, along with Native Hawaiian cultural uses, such as downstream kalo farming, that were negatively impacted by A&B’s diversions.

A&B has been challenged on its water use for decades by community groups; however, Mahi Pono has said it is striving to differentiate from A&B in how it approaches water use.

Sierra Club and A&B could not be immediately reached for comment on Wednesday.

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

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