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Judge may vacate East Maui water diversion permits

Circuit Court said contested case should have been held before the state land board

A water diversion is shown in Haiku in January 2016. Alexander & Baldwin subsidiary East Maui Irrigation Co. has long diverted water from East Maui streams through a system of ditches, tunnels and siphons for sugar operations. However, a one-year revocable permit allowing A&B to divert 45 million gallons of water per day is in jeopardy after a First Circuit Court judge ordered the state Board of Land and Natural Resources to hold a contested case hearing on the permit. The Maui News / MATTHEW THAYER photos

Revocable permits granted last year for diverting water from East Maui streams for Mahi Pono’s farming and other uses may be in jeopardy unless a First Circuit Court judge hears a formal request to stay the order.

Saying that “the court does not wish to create unintended consequences or chaos by vacating the permits without knowing the practical consequences of such an order,” First Circuit Judge Jeffrey P. Crabtree ordered the state Board of Land and Natural Resources, which granted the permits on Nov. 13, to hold a contested case hearing on the matter “as soon as practicable.”

The BLNR initially denied Sierra Club’s request for a contested case hearing on the permits, but Crabtree said Friday in an interim decision on appeal that the board violated the Sierra Club’s “due process rights” by not holding the hearing and that the club had new information to present regarding the permits.

The orders are the latest developments in the Sierra Club’s appeal against the BLNR, Alexander & Baldwin Inc. and East Maui Irrigation Co.

On Nov. 13, the BLNR approved another round of one-year permits, allowing A&B to divert 45 million gallons of water per day using the East Maui Irrigation system on state lands for Mahi Pono crops this year. A&B co-owns the water diversion system with Mahi Pono.

Alexander & Baldwin co-owns the East Maui Irrigation Co. system with Mahi Pono, which now uses it to supply water for its farming operations.

Water from the East Maui system is also diverted for other users, including the county Department of Water Supply for municipal purposes such as domestic water use.

Crabtree said he is not vacating the revocable permits yet and that “the court reserves jurisdiction to consider any additional requests from the parties on whether or not the court should modify the existing permits, and how, or whether the court should leave the existing permits in place until their current expiration date.”

He added that if “no such further requests” are filed by 4 p.m. June 30 then the revocable permit “shall automatically be vacated.”

“The court’s order means that for the first time, the Board of Land and Natural Resources will be required to make A&B fulfill its burden of proof before receiving any permits to use public resources,” Sierra Club attorney David Kimo Frankel said in a news release Monday. “It also means that the Sierra Club will be given an opportunity to show how much harm the diversion of our streams is causing. A&B cannot justify draining streams dry when most of the water it takes is wasted.”

For more than 150 years, A&B diverted East Maui streams for sugar operations in Central Maui and Upcountry. After the sugar plantation closed down in 2016, some of those stream flows were restored. 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.

Water continues to be diverted from East Maui for Mahi Pono’s farming needs as well as Maui County’s domestic water use.

A&B, whose water permits are nontransferable, had been granted one-year revocable permits for more than a decade for sugar operations. The company would not have been allowed to apply for a revocable permit beyond 2019 were it not for the Intermediate Court of Appeals in June of that year 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 November, the BLNR unanimously approved the permit. Following Crabtree’s decision, the Sierra Club will have a chance to get a hearing before the board.

“Our East Maui communities who depend upon the dozen streams left out of previous restoration decisions, will finally have a chance to make a case to restore the life-giving waters to our streams and fisheries,” East Maui resident and Sierra Club Maui Group Executive Committee Chairperson Lucienne de Naie said.

Sierra Club Director Marti Townsend added that the court’s decision “does not jeopardize Upcountry users of East Maui water.”

“The Sierra Club has repeatedly committed to ensuring that water continues to flow to domestic users of the water like those in Upcountry,” Townsend said.

Both the county and the state declined to comment on the decision, with Department of Land and Natural Resources spokesperson Dan Dennison saying that the department “cannot comment on pending legal proceedings.”

Maui County spokesperson Brian Perry said that “Mayor (Michael) Victorino has no comment while he’s reviewing the First Circuit order and looking out for the best interests of the people of Maui County.”

A spokeswoman for Mahi Pono also said the company did not “have a statement at this time.” Mahi Pono, which owns half of EMI and purchased 41,000 acres of former sugar cane lands from A&B in 2018, has sought to differentiate itself from its predecessor’s plantation-era water use.

A&B also did not provide a comment by Tuesday evening.

* Melissa Tanji can be reached at mtanji@mauinews.com.

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