Litigation Station: Red Hill + East Maui
By Wayne Tanaka | Reading time: 3.5 minutes
April saw some exciting developments in our legal advocacy to #ShutDownRedHill and uphold the public trust in East Maui’s streams. Read below for more!
Red Hill Appeals Dropped; Navy seeks to withdraw Underground Storage Tank Permit application
The March 7 Pentagon directive to defuel and shut down the Red Hill Bulk Fuel Storage Facility was a welcome and long overdue admission that this massive, antiquated underground storage tank system had no place endangering the principle source of drinking water for the island of O‘ahu. However, the lack of a concrete deadline for defueling (other than a “target” date for completion of May 2023(!)), combined with the Department of Justice’s (”DOJ’s”) and Navy’s persistence in their legal appeals of the Hawai‘i emergency order and the five year operating permit application for the Red Hill facility, left O’ahu residents with substantial uncertainty as to the meaningfulness of this directive.
This past Earth Week, however, the DOJ and Navy finally changed their legal postures, withdrawing the appeals of the emergency order in federal and state courts, and motioning to withdraw their underground storage tank permit application. As a result, the DOJ and Navy have effectively conceded that the Red Hill Facility poses an imminent peril to our groundwater aquifer, and are no longer seeking to operate the Red Hill Facility under state law.
While this is a critical development in our campaign to protect our water, we are not out of harm’s way, and this campaign unfortunately is still not over. With the Department of Health (”DOH”) contemplating a new emergency order for the defueling and decommissioning of the Red Hill Facility, we need to urge Governor Ige and his Health Director Dr. Char to not let us down, and use their authority to ensure a timely defueling of Red Hill - with full transparency on the part of the Navy with regards to the safety of our water. Please take a moment to take action and let them know that we are counting on them to do what it takes to keep us safe (and spread the word to your friends and networks as well).
Circuit Court Requires More Safeguards for East Maui Streams; Contested Case Hearing Still Pending
Also in April, the Environmental Circuit Court further reduced the amount of water that Alexander & Baldwin and East Maui Irrigation (”A&B”) are allowed to divert from East Mauiʻs streams, while the Sierra Club’s
In July of 2021, after ordering the Board of Land and Natural Resources (”BLNR”) to grant Sierra Club’s contested case request, Environmental Court Judge Jeffrey P. Crabtree capped the amount of stream water that may be diverted from East Maui’s streams at 25 million gallons a day (”mgd”), instead of the 45 mgd authorized by BLNR. In placing this cap, which was advocated for by the Sierra Club, Judge Crabtree noted that Sierra Club was the only party to offer 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.”
With the contested case hearing still unresolved nearly one year later, BLNR and A&B sought an extension of the time they were given by the court to continue diverting water. During the hearing, Sierra Club presented evidence, based on A&B’s own water usage reports, that over half of the water diverted from East Maui was wasted in 17 of the last 27 months. In addition, despite the expansion of agricultural operations in East Maui, A&B had not taken more than 20 mgd in any month since last July.
In his ruling, Judge Crabtree noted that while 5 mgd may not seem like much, it adds up: with this cap reduction, 225 million gallons of stream water will not be at risk of being diverted before June 15.
This decision is significant, showing the importance of data and water usage reporting in decisionmaking that may impact our public trust resources. It also highlights the undue deference given by the BLNR in granting A&B the ability to divert tens of millions of gallons of water per day that it clearly did not, and does not, need. It remains to be seen whether the BLNR will follow Judge Crabtree’s lead, and undertake a meaningful, evidence-based public trust analysis in rendering a decision in our contested case over A&B’s revocable permits.