Court Cuts A&B’s Watertake: Explained!
This post explains in more depth our press release from last week.
A&B’s permitted watertake has been cut nearly in half!!!
Last week, the Environmental Court limited the amount of water that Alexander & Baldwin and Mahi Pono can take from east Maui streams to about half of what was previously allowed under its state permit, giving a much-needed reality check to the state’s tendency to over-commit public water resources to private diverters who have no proven need.
FINALLY! Somebody is listening to us, and now stream diverters have a real incentive to prudently use the water that they are allowed to take. It takes tenacity to set right these enduring injustice, and our tenacity is fueled by you and thousands like you who believe in our work.
Here's the full story on this thrilling win:
BLNR authorized 45 million gallons of water a day to be taken by A&B and Mahi Pono, through their shared ownership of East Maui Irrigation Company…no questions asked. But A&B and Mahi Pono never had any need for that much water, and their farming operations never used more than 10% of that amount. Another 10% went to Maui County’s upcountry system.
So what use was the other 80% put to? The short answer - a lot of it was simply wasted. This resulted in the 12 forgotten East Maui streams, which were supplying the water, running dry 80% of the time. But BLNR just ignored the strong and repeated objections we and east Maui residents raised about the wasting of diverted stream water.
Naturally, we appealed the BLNR’s decision to deny our request for a contested case hearing. The Environmental Court reviewed our case and found that we have a constitutional right to that evidentiary hearing.
So, the court modified the permits issued to A&B in November 2020 because they were granted without following the constitution. After much back and forth with the parties, on Friday the court ordered that the diverters take only 25 million gallons of water a day for the duration of the contested case hearing process.
WE DID IT! We finally got someone to see that these corporations are authorized to take far more water than they actually need or use. And the people who rely on these streams in Huelo and Hoʻolawa are comforted to know that even more water can’t be taken from their backyards, when it's not even needed and is likely being wasted. We've already seen neighboring stream ecosystems spring back to life as soon as more water is returned, so they have a lot to look forward to.
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, “this should be more than enough water to allow all users the water they require, while hopefully reducing apparent or potential waste.”
That last point is very important. The court reviewed all of the data and was careful to make sure that enough water is still diverted from east Maui to meet all current domestic and agricultural water needs in upcountry and central Maui. This is a reasonable interim compromise. Nobody will be without water because of this decision. But also, A&B/Mahi Pono will have to do a lot more to reduce the amount of water wasted by their diversion system. You can read the court’s order and see the water usage reports in our previous post.
To be clear, as big of a deal as this court order is, it is a temporary measure. There is still plenty of work to do. We have a historic contested case hearing to get through, and the Final EIS for A&B’s proposal to lease the public lands in east Maui where these streams flow was just released to the public. We are just getting through it -- it is massive -- so look for more information on that soon. For now, mark your calendars for the August 13th BLNR hearing on whether to accept A&B’s Environmental Impact Statement.
News coverage on this breakthrough is just beginning. Here are the stories published so far on this major win for the streams:
Civil Beat: "Court Limits A&B East Maui Stream Diversions," Chad Blair, August 3, 2021
Maui Now: "Court Cuts A&B's Watertake from East Maui While Contested Case Hearing is Underway," August 4, 2021
Politics on Maui: “Citing 'Unconstitutional Status Quo,' Judge Sharply Curtails East Maui Water Diversion,” Deborah Rybak, August 4, 2021