Oral Arguments on Monday in East Maui Contested Case Hearing
After 18 long months, the Board of Land and Natural Resources (“BLNR”) is finally close to resolving our contested case regarding the 2020 holdover of revocable permits to divert a dozen East Maui streams in 2021 (and now 2022). The hearings officer, Suzanne Case, has issued her proposed recommendation and now each party has a chance to argue their side one last time before the recommendation is put before the BLNR - also chaired by Suzanne Case - for a vote on whether or not to accept or modify her recommendations and issue a final decision.
The oral arguments are bound to be juicy. Everyone is encouraged to tune in on Wednesday, June 1 at 8am. You can livestream the hearing here.
The hearing officer’s proposed decision does have some good things - including increased reporting requirements on how diverted East Maui water is actually used, and - for the first time - a watershed management fee, to support the protection of our watersheds from invasive species and other threats.
However, despite new evidence we introduced showing that A&B has wasted over half of the millions of gallons of water it takes from East Maui streams every day, for well over half of the time since January 2020; despite the Water Commission’s stream specialist admitting that new hydrological information showed that streams would benefit biologically from restoration of flows; and despite the fact that A&B has never actually diverted more than 20 million gallons per day (mgd) under these RPs, since Judge Crabtree imposed a 25 mgd cap in July of last year - the hearings officer is recommending that A&B be allowed to divert the full 45 mgd it was originally authorized to divert when these RPs were held over in 2020.
Also disappointing is the hearing officer’s refusal to require any of A&B’s leaky reservoirs to be lined or covered, to prevent the ongoing loss of millions of gallons of water per day that could remain in East Maui’s streams. As well as the possibility that her recommendation could be adopted before the Water Commission adopts new and long-overdue instream flow standards that would better protect the public interest in the diverted streams at issue.
To hear more of our concerns - and A&B’s own objections - be sure to tune in on Monday! For those who are unable to, we will be sure to provide you with a recap and update after the hearing.
How we got here:
In November 2020, the Board of Land and Natural Resources issued revocable permits to Alexander & Baldwin and East Maui Irrigation Company (owned by Mahi Pono), permitting the continued, baseless take of 45 million gallons of water per day (“mgd”) from East Maui streams. The Sierra Club requested a contested case and was denied, for the second year in a row.
We challenged the denial in court and in July 2021, Judge Crabtree of the Environmental Court ruled that the Board of Land and Natural Resources improperly denied our constitutional right to a contested case hearing and ordered the board to hold the contested case as soon as possible. In the interim, the court capped the amount of water that A&B could take at 25 mgd instead of the 45 mgd authorized by the BLNR.
Despite being ordered to hold the contested case as soon as possible, the BLNR didn’t hear the case for another six months. At that hearing, we learned some important information:
The state’s own hydrologist agrees that the twelve streams need more water
A&B/Mahi Pono had no problems with operations under 25 mgd cap
There is no evidence to show that A&B/Mahi Pono needs or even uses most of the water it diverts
Mahi Pono pays a tenth of what farmers using Waiāhole ditch water pay
Just last month, in response to the BLNR’s request to further extend these revocable permits, and after reviewing water usage data from A&B, Judge Crabtree further reduced the allotted diversion amount to 20 mgd, as no more than 19 mgd had been diverted under the revocable permits since July of last year. This new condition is in place until June 15, or until the BLNR resolves the contested case.
This legal battle with BLNR has been long and arduous and is just one way in which we are working hard to restore water to more streams in East Maui. We currently have filed a now-overdue petition for the establishment of Interim Instream Flow Standards for the same dozen streams, appealed the latest court decision in our lawsuit against BLNR, organized around A&B’s Final Environmental Impact Statement for its long-term lease for access to East Maui’s streams, and launched a citizen’s science program to monitor streams in East Maui.
Thank you for your continued support and dedication to seeing it through that more streams are restored in East Maui, for the benefit of our stream ecosystems and the people and native species that rely on them.