Litigation Station: East Maui Recap and Update

by David Kimo Frankel | Reading time: 4 minutes

For more than a century, Alexander & Baldwin and its subsidiary East Maui Irrigation (A&B) have drained East Maui’s streams dry, displacing native species, cultural practitioners, and local families who all depend upon - and have legal rights to - adequate stream flow. For the past two decades, the Sierra Club has stood side by side with the communities of East Maui, to advocate for the restoration of their life-giving streams.

In 2001, Nā Moku Aupuni O Ko‘olau Hui (Nā Moku), a group of Native Hawaiian kalo farmers and fishermen, petitioned the Commission on Water Resource Management to amend the meaningless interim instream flow standards it had established two decades prior, for approximately two dozen East Maui streams. After 17 years and multiple legal appeals, the Water Commission ordered that: no water be taken from nine “kalo” streams and a major tributary; no less than 64% of the median base flow (the minimum viable flow necessary to provide suitable habitat conditions for recruitment, growth, and reproduction of native stream animals) must be allowed to flow in five additional streams; and 20% of the median baseflow must remain in approximately seven more streams (to ensure stream connectivity).

The Water Commission, however, did not set instream flow standards for another dozen diverted streams in the Huelo region. There are no meaningful standards for those streams, allowing A&B to take all the water from those streams under annually continued revocable permits - and in the near future, a potential decades-long water license - issued by the Board of Land and Natural Resources. Last year, the Sierra Club filed a petition to establish protective standards for those dozen streams.  The Water Commission has announced that it intends to discuss those streams in August and September, with a decision likely by October.

The Sierra Club has also repeatedly sued the Board of Land and Natural Resources for authorizing the excessive diversion - and waste - of water from East Maui’s streams, via the one-year “revocable permits” and “holdovers” of these permits that have allowed A&B to continuously divert East Maui’s streams for the past four decades.

We sued over the decisions that the Board made in 2018 and 2019, to authorize the diversion of East Maui’s streams in the subsequent years. That case is currently on appeal.

We then successfully sued the Board for refusing to conduct a contested case hearing over its renewal of A&B’s permits in 2020. The environmental court ordered the Board to hold one and capped the amount of water that could be taken from East Maui.

In late 2021, we challenged A&B’s request to once again continue the “one-year” revocable permits. We cross examined witnesses and presented evidence in a contested case hearing, including evidence showing that millions of gallons of water per day were being wasted and that the diversion of the 12 unprotected streams were causing more environmental harms than previously thought. Nevertheless, the Board of Land and Natural Resources has now once again voted to continue the revocable permits without conditions that would help to protect these streams.

We are currently appealing the Board of Land and Natural Resources’ 2022 decision to continue the revocable permits. Here are some of the things that we have learned as a result of all our litigation:

• The Board has authorized A&B to drain a dozen Huelo streams dry even though the Board had never evaluated and rendered a determination regarding the ecological and recreational value of those streams;

• The Board’s Division of Aquatic Resources determined that a stream needs a bare minimum of 64% of its median base to provide suitable habitat conditions for recruitment, growth, and reproduction of native stream animals;

• A&B’s own expert determined that de-watering a stream reduces the amount of habitat provided by the stream by 88%;

• The vast majority of the time, most of the water taken out of east Maui streams is not used, but is wasted;

• A&B has made up water usage estimates with no factual basis to justify its de-watering of East Maui streams;

• If A&B, EMI, and Maui Pono used the one reservoir that is lined, lined their other reservoirs, and lined more parts of the ditch system, much more water could remain in East Maui’s streams, while still providing more than enough water for agriculture to flourish in Central Maui; and

• There is groundwater that A&B can use instead of draining the Huelo streams dry.

For too long, the Board of Land and Natural Resources’ decisions have unfairly deprived our streams and watersheds of water, allowed millions of gallons of our most precious resource to be wasted on a daily basis, and failed to meet the most basic obligations under the public trust. The plantation-era practice of blindly catering to corporate diverters’ unfounded assertions and demands - while depriving East Maui’s communities and watersheds of the stream flow they need - must end. The Sierra Club of Hawai‘i will now take this fight to the courts - as well as to the legislature and polls if necessary - to see this through. Join us!