Court Cuts A&B’s Watertake from East Maui by 50%
Court ruled 25 MGD is sufficient to meet all current water needs without wasting, pending completion of contested case hearing
HONOLULU, Hawaiʻi (August 2, 2021) -- Stream advocates are celebrating for east Maui streams. Last week, the Environmental Court limited the amount of water that Alexander & Baldwin and East Maui Irrigation can take from east Maui streams to about half of what was previously diverted, more closely matching actual water used based on reports to the Board of Land and Natural Resources.
After reviewing documentation of actual water usage from East Maui Irrigation Company reported monthly since 2017, the Environmental Court authorized the diversion of an average of about 25 million gallons of water per day, or about half of what A&B was authorized to take at any given time, while a contested case hearing is conducted.
“This is a big deal! We are very pleased that the court reviewed all of the evidence and made a thoughtful determination that serves the legitimate water needs of the community and protects the health of these streams,” said David Kimo Frankel, attorney for the Sierra Club. “This is a fair and balanced decision, a true win-win-win all the way around.”
In its written ruling, the court said “the Sierra Club was the only party which offered the court concrete and specific options and support for how to modify the defective permits and not leave a vacuum until BLNR conducts a contested case hearing." The court added that “this should be more than enough water to allow all users the water they require, while hopefully reducing apparent or potential waste.”
“Just as upcountry Maui residents are being asked to conserve water right now, the court recognized that Mahi Pono also must do all that it can to reduce waste in its own water usage,” said Marti Townsend, director for the Sierra Club of Hawaiʻi.
In November 2020, the Board of Land and Natural Resources authorized Alexander & Baldwin and Mahi Pono, through their shared corporation called East Maui Irrigation Company, to continue diverting up to 45 million gallons of water daily from dozens of east Maui's streams. A&B and Mahi Pono did not offer any evidence to support why it needed to take so much stream water. As a result of the BLNR repeatedly renewing these temporary permits, all of the water was diverted 80% of the time from these streams and most of it was directed into unlined reservoirs where it seeped into the ground.
“Community members have been testifying to the BLNR for years about the damage diversions do to our streams,” said Lucienne de Naie, a resident of Huelo in east Maui. “These streams often run dry in sections, putrid puddles breed mosquitoes, old pipes and other debris litter the stream banks, and the native stream species do not have enough water to thrive in. And all of us who live in east Maui rely on this water, as well for our own homes and farms in east Maui,” she added.
These awful conditions motivated the Sierra Club to request a contested case hearing on the permits issued to East Maui Irrigation Company in November 2020. Last month, the Environmental Court ruled that the BLNR had failed to uphold the constitution when it improperly denied the Sierra Club’s request for that contested case hearing.
Authorizing only 25 MGD to be diverted means the needs of Maui’s residents and farmers, as well as the stream ecosystem, will be met, but it also means the terms of the contract between A&B and Mahi Pono for the East Maui Irrigation Company are now in question. In December 2018, Mahi Pono had agreed to pay A&B $62 million for half ownership of East Maui Irrigation and guaranteed access to 30 million gallons of water everyday for 8 years.
Water Usage Reports
East Maui Stream Diversions • January 2020 to June 2021 • Alexander & Baldwin/Mahi Pono
[1] A&B has attempted to disguise the system losses by creating categories of non-consumptive uses and lumping in those uses that constitute a trivial amount of the water used. First, the water that goes through the hydroelectric plant is then subsequently used for irrigating crops (so it cannot be counted as a consumptive use of water). Second, EMI’s Mark Vaught testified under oath that approximately 100,000 gallons per day are used for dust control. That estimate seems quite high given that a fire tanker discharges 7,000 gallons per hour. In any case, dust control constitutes a small fraction of the water used. Third, very little water is actually used to fight fires (a fire that takes 72 hours to extinguish, using 10,000 gallons of water an hour takes less than one million gallons of water). The water that sits in the reservoirs is not actually used (and if it is used, it is recorded instead in the Mahi Pono Diversified Ag column of the Monthly Water Usage chart). Virtually all the water in the “Reservoir/Fire Protection/Evaporation/Dust Control/Hydroelectric” column is lost due to evaporation and seepage.
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See also our follow up post: Court Cuts A&B’s Watertake: Explained!
Court order in Sierra Club v. BLNR, Civ. No. 20-0001541, July 30, 2021.
Form 8-K, Alexander & Baldwin, December 17, 2018, showing arrangement for the purchase of half of EMI and a guaranteed delivery of water for $62 million.