East Maui Water Wars: Justice Denied Once Again?
Once again, East Maui streams need our help! This Friday, the Board of Land & Natural Resources (BLNR) will be considering a staff recommendation to DENY a contested case hearing request from Nā Moku ʻAupuni o Koʻolau Hui (Nā Moku), a group of East Maui kalo farmers and community members, over the issuance of a revocable permit that allows a Canadian pension fund to divert tens of millions of gallons of water every day from East Maui streams.
As we wrote last December, this denial would foreclose the opportunity for Nā Moku and the BLNR itself to have a critical, evidence-based examination of numerous concerns, including but not limited to water waste, environmental impacts of stream diversions, and impacts to constitutionally-protected Native Hawaiian traditional and customary rights, among others.
Please take a moment to submit testimony to the BLNR, to reject the staff recommendation and grant Nā Moku due process for water rights that have been neglected for far too long. Feel free to use this sample testimony or craft your own:
Sample Testimony
Subject: Agenda Item D-3
Aloha Chair Chang and Members of the Board of Land and Natural Resources,
My name is _________ and I am from _________. I respectfully but strongly urge you to DENY the staff recommendation in item D-3, and to GRANT Nā Moku ʻAupuni o Koʻolau Hui (Nā Moku) the right to a contested case hearing, consistent with your duties under the constitution and the public trust.
Beyond upholding Nā Moku’s constitutional rights, a contested case would provide critical, comprehensive, and vetted information to address numerous persistent issues and concerns regarding East Maui water diversions, including:
The need for an objective method to determine how much water will actually be needed by the revocable permit applicant for the coming year;
The true extent of the impacts that permitted stream diversions may have on public trust purposes, including watershed health and Native Hawaiian traditional and customary practices;
The extent to which Native Hawaiian traditional and customary rights may benefit from increased stream flow, and what feasible steps can be taken to realize these benefits;
What feasible steps can be taken to prevent the complete draining of streams, and ensure the expeditious implementation of instream flow standards established by the Water Commission;
What feasible steps can be taken to save millions of gallons of diverted stream water from being wasted every day, and otherwise keep water in East Maui streams;
among many others.
Only through a contested case hearing can we all begin to truly understand and finally address these questions and concerns, for the current permit and potentially for any future permits that may be issued. As you know, a contested case would include the opportunity for all parties to cross-examine witnesses, critically examine the credibility of the evidence presented, and have decisions made in writing, based on the information and arguments presented - ensuring comprehensive, transparent, and fully-informed decisionmaking that may finally help to resolve the conflict, anguish, and injustice over East Maui’s stream diversions that have festered for far too long.
Supreme court decisions such as Kauaʻi Springs and the recent Nā Wai ʻEhā opinion make clear that all agencies - even county planning departments - have the duty and authority to uphold the public trust in wai, which includes actively looking for ways to protect stream flow, Native Hawaiian traditional and customary practices, and other public trust purposes from undue impacts. Granting this contested case hearing request would provide you with the information you need to uphold your public trust duties, as well as protect the long-neglected due process, traditional and customary, and other constitutional rights of Nā Moku ʻAupuni o Koʻolau Hui.
Accordingly, I urge you to GRANT the contested hearing request from Nā Moku ʻAupuni o Koʻolau Hui, notwithstanding the staff recommendation in agenda item D-3.
Mahalo nui for your consideration of this matter.
Sincerely,
[Your name]
More Background
For decades, East Maui kalo farmers and community members fought an uphill battle to vindicate their water rights, as former plantation oligarch-turned-real estate investment trust Alexander & Baldwin - with the annual blessing of the Board of Land and Natural Resources (BLNR) - dewatered dozens of streams that once sustained East Maui’s watersheds, loʻi kalo, muliwai, and ways of life.
While they have seen some recent successes with the Water Commission and in the Hawaiʻi Supreme Court, this was not before many of the kūpuna who had first sought to assert their water rights passed away, never seeing their rights vindicated, much less the mauka-to-makai stream flow that they dreamed of one day returning to their ʻāina.
Moreover, the BLNR has continued to abdicate its own public trust responsibilities, allowing Alexander & Baldwin and its former business partner, Mahi Pono, to divert East Maui streams under annual revocable permits without requiring these diverters to demonstrate their actual needs, or to reduce the waste of millions of gallons of water per day due largely to their refusal to use lined reservoirs.
The BLNR has also continued to defy court orders to provide interested parties, such as the Sierra Club, a contested case hearing before it issues its annual revocable permits that authorize these diversions. This includes its decision in December 2024 to summarily deny the contested case hearing requests that the Sierra Club had submitted in 2023 for the 2024 permit, and in 2024 for the 2025 permit.
Now, the BLNR is poised to continue this legacy of injustice, as it considers a staff recommendation to reject a contested case hearing request by Nā Moku ʻAupuni o Koʻolau Hui over the 2025 East Maui revocable permit. Doing so would once again deny East Maui kalo farmers and residents their constitutional rights to due process, to engage in Native Hawaiian traditional and customary practices, and to ensure a healthful environment for themselves and the generations to follow.