Litigation Station: East Maui & Red Hill

By Wayne Tanaka | Reading time: 3 minutes

East Maui:

Last month the Board of Land and Natural Resources finally heard our contested case regarding revocable permits for a dozen Huelo streams. A lot of new information was put on the record that proves that Alexander & Baldwin, Mahi Pono and East Maui Irrigation have time and time again failed to meet their burden of proof of exactly how much water they need and what exactly they use it for.

As always, David Kimo Frankel delivered a spot-on, moving argument for the protection of Maui’s streams and public trust resources. All the while, Mahi Pono and A&B were just going through the motions and counting down the minutes until this hearing was over. Given the history of water hand-outs, blank checks and the closed door environment that Suzanne Case created for this hearing, that doesn’t come as a surprise.

Here’s a quick recap of what we learned:

The state’s hydrologist agrees—the twelve forgotten Huelo streams need more water. Dr. Ayron Strauch, hydrologist for the water commission, testified to this point, acknowledging that new information counseled the restoration of more flow than previously recommended. Bottom line: too much water has been taken for too long and the native stream ecosystem and the residents along the stream are suffering.

A&B and Mahi Pono have not had any problems with operations since the 25 million gallon a day cap was imposed by Judge Crabtree in July. Previously in 2020, Mahi Pono testified that a cap would have a devastating impact on their production. As revealed in the hearing, there is even room within the 25mgd for Mahi Pono to expand its agricultural practices in 2022.

There is no evidence to show that A&B/Mahi Pono needs or even uses most of the water it diverts, which they claim is needed for historic and industrial uses, fire fighting, dust control, Upcountry Mauiʻs municipal needs, irrigation and reservoirs. In most cases, the amount of water they need is unsubstantiated and immensely overestimated. A&B’s own numbers indicate that seepage and evaporation from unlined reservoirs results in the loss of 50-70% of the water diverted; amazingly, A&Bʻs witnesses refused to acknowledge this as waste.

Mahi Pono pays a tenth of what Waiāhole kalo farmers pay for their water. Mahi Pono pays 4.8 cents per 1,000 gallons of water, while Waiāhole farmers pay 58 cents. Imagine the invasive species mitigation and watershed protection Department of Land and Natural Resources could do if Mahi Pono paid that same rate?

In addition to conditions to address the excessive waste of water and degradation of native stream ecosystems, we are asking that the 25 million gallon a day cap remains on the twelve Huelo streams until the water commission rules on the petition for instream flow standards for these streams, to prevent any further damage to the streams and ecosystems.

So what’s next?

We are waiting for the hearings officer, Suzanne Case, to make her recommendation to the Board of Land and Natural Resources (again, of which she is also chair) and the board will vote on the recommendation. We are looking at getting a decision in the spring of 2022.

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Red Hill:

Please see our Red Hill section for details on the Navy’s contested case hearing over the state emergency order to defuel the Red Hill Facility.

Meanwhile, the contested case hearing regarding the Navy’s underground storage tank permit application for the Red Hill Facility has been reopened, and the hearing officer has demanded that the Navy provide a laundry list of additional, critical information regarding the Facility, including:

1. a complete drawing or depiction of all components and elements of the Red Hill Facility

2. an updated and complete list and chronology of all events and “unscheduled fuel movements,” including releases, suspected releases, and “surge” events, including at the Hotel and Kilo piers at Puʻuloa, from the Red Hill Fuel Tanks and associated pipelines and distribution systems post January 2014

3. an organizational chart and identity of persons responsible for the maintenance, repair, and operation of the Red Hill Facility

4. the identity of persons associated with the Navy who have management responsibility and knowledge of “unscheduled fuel movements” as described above

5. all records and reports relating to the detection of petroleum constituents in the Navy’s drinking water supply wells and monitoring wells

6. an updated tank inspection and repair status chart

7. all documents related to the Department of Health’s Notice of Violation from October 2021, or any other reported or asserted violations since July 2018

8. all records and reports relating to pipeline inspections from January 2014

9. all documents and information relating to October 2021 reports on the May 2021 spill

10. all documents referenced in the Department of Health’s June 2021 letter to the Navy concerning the active pipeline leak in Pu‘uloa

11. all Navy emails referenced in the CivilBeat whistleblower articles in October and November

12. all documents relating to the November 2021 fuel release incident as scheduled to be finalized in January 2022.

This information will need to be provided to the hearing officer by February 10, 2022. The Sierra Club, Board of Water Supply, and Environmental Health Administration will then have two weeks to respond as to whether they believe the Navy’s depiction of the Red Hill Facility is complete.