The Water Fight Continues: East Maui Revocable Permit Recap

East Maui watersheds will be needlessly dewatered for yet another year, after the Board of Land and Natural Resources (BLNR) once again awarded Alexander & Baldwin (A&B) and Mahi Pono a revocable permit to divert tens of millions of gallons of stream water per day through 2025, without meaningful protections against waste, or a critical analysis of the diverters’ claims.  

Voluminous written and oral testimonies were presented to the BLNR, almost all calling for conditions to reduce water waste and to scrutinize the amount of water actually needed to be taken from East Maui’s watersheds. In light of the substantial public outcry, the BLNR did incorporate certain proposed amendments to the staff recommendation, to slightly reduce the waste of unused water delivered to Upcountry Maui and the Kula Ag Park, and to adjust the composition and facilitator of a stakeholder group to discuss community concerns (which will now include the Department of Hawaiian Home Lands and the ‘Aha Moku Advisory Committee, and be run by the county, rather than the diverters). 

However, significant concerns in their proposed decision to issue the 2025 revocable permit led the Sierra Club and East Maui’s Nā Moku ʻAupuni o Koʻolau Hui to request a contested case hearing, which the BLNR summarily denied. These concerns include:

• No condition to require the use of a lined reservoir for diverted stream water by November 2025, as proposed by the Sierra Club, despite the documented loss of millions of gallons of water every day from Mahi Pono’s century-old, leaky, unlined reservoirs; 

• No protection against the continued, total dewatering of certain streams the vast majority of the time;

• The permit’s authorization to divert substantially more water than needed for Central and UpCountry Maui, based on inflated water demand estimates;

• The use of an “annual average” to determine whether the diverters have complied with the limits on how much water can be taken from East Maui, which would not allow be enforceable until the one-year permit expires, and would allow the diverters to take even more water during the dry season, when there is a greater need to share this vital resource; and

• The BLNR’s endorsement of a staff claim that it has neither the authority nor the responsibility to protect streams - despite clear statutory language, the BLNR’s own past practices, and Hawaiʻi Supreme Court precedent to the contrary (listen to Sierra Club’s attorney, Kimo Frankel, demolish this outlandish assertion here);

• among others.

Of particular note was Mahi Pono Vice President Grant Nakama’s opposition to the use of lined reservoirs to prevent waste. In his oral testimony, he argued that Mahi Pono needs diverted stream water to seep out of the leaky reservoirs and “recharge” the underlying aquifer - so that they can pump the water back up for irrigation. Unfortunately, Kimo Frankel’s common sense rebuttal did not convince the majority of the BLNR to take a stand against such a nonsensical waste of our most precious resource.  

Also of note was the Department of Land and Natural Resources’ failure to bring our properly submitted December 2023 contested case hearing request on the 2024 revocable permit for the BLNR’s consideration, until this December meeting - just weeks before the 2024 permit expired. The year-long delay would be difficult to describe as anything but bad faith. Meanwhile, the DLNR’s failure to hold a contested case hearing on these revocable permits has prevented and will continue to prevent a critical examination of facts and claims that could reduce waste and better protect the public interest while still allowing sufficient water for UpCountry Maui, as well as agriculture in Central Maui and Kula.  

While we are disappointed, the Sierra Club will continue to stand up against the needless waste of our most precious resource and the continued abdication of the public trust doctrine in favor of corporate offshore interests - including in a circuit court appeal to vindicate our right to a contested case, and to uphold our constitution and the public interest in wai.  

Your support - in responding to action alerts, spreading the word, and donating to our work - has been and will continue to be essential to this fight. 

Thank you for standing with us in 2024, and please stay tuned for an action packed 2025 as the East Maui “Water Wars” continue to unfold.