Restore streams, revitalize Native Hawaiian communities

The Sierra Club of Hawaiʻi and its Groups stand for the protection of our native ecosystem and the rights of traditional kalo farmers to the public water in our streams. For decades, throughout the islands, sugar plantations—now turned landowners and development corporations—have unjustly diverted public water from streams for their private profit. Communities dependent on these once flourishing streams are banning together to fight for the return of their waters and to protect future generations from water theft.

The public trust doctrine prioritizes customary, traditional practices and the health of native streams and coastal life over private commercial uses. For over 100 years, a private corporation Alexander & Baldwin has diverted public water from streams in East Maui—leaving dry rock beds, stagnant water, and communities without water.

Photo by Nic Torrey

Happening Now: A&B’s Draft Environmental Impact Statement finally out for public comment

The long-awaited draft EIS for the diversion of East Maui streams is finally here. It is a long, hard read, but it is a necessary step to holding the corporate diverters responsible for the harm they have caused to the East Maui watershed. 

How we got here: A&B has requested a 30-year Water Lease from the Board of Land and Natural Resources. This lease application, if approved as is, would give A&B and its corporate partner, Mahi Pono, the right to continue to divert East Maui streams flowing through four lease areas on public lands, from Honopou to Nahiku. Before a lease like this can be approved, BLNR requires an Environmental Impact Statement (EIS) to be completed by the entity requesting the lease. The EIS is supposed to document all the ways the lease proposal could impact the environment and whether these impacts can be mitigated. The BLNR then uses the EIS to determine whether or not to approve a lease to A&B and Mahi Pono.

This EIS is an important step in the decision-making process.  If the BLNR votes to accept the EIS findings and approve the water lease, the lease must go through a public bidding process, which A&B may or may not win. We want the EIS to be as thorough as possible so that the BLNR will have adequate information to make a decision on whether to approve a lease for this area and, if so, what types of limitations or alternative options to a 30 year lease should be considered.

East Maui’s communities have waited over 20 years for an EIS that discusses the real impacts of the longtime East Maui stream diversions. Providing your comments on this document now will help to expose the shortcomings of this document and ensure the truth about how the legacy of stream diversions have harmed the East Maui watershed and the people who rely on it. Click here to learn more.

 

 

BLNR unanimously approves A&B/Mahi Pono’s temporary permits once again

On October 11, the Board of Land and Natural Resources approved Alexander & Baldwin/Mahi Pono’s four revocable permits to continue diverting water from East Maui’s streams. Following hours of testimony and deliberation, the Board unanimously voted to approve the permits and Member Chris Yuen amended the staff recommendation to increase the amount of water A&B is allowed to take from 35 million gallons a day to 45 million gallons a day (MGD)—measured on an annual basis, “subject to availability”. Yuen offered this amendment after A&B/Mahi Pono straight up asked for more water while offering no basis on why they needed more than 35 MGD. This amendment means that during some months a lot more than 45 MGD can be taken from the streams to “balance out” the months they take less. Several of the streams covered by these permits are not protected by Instream Flow Standards, which ensure a minimum amount of water in the streams so that native stream life can thrive.  Member Roehrig also offered amendments requiring the clean up of trash from the streams (abandoned diversions, materials, and equipment), site visits by Department of Land and Natural Resources staff, and a report from the diverters every quarter. 

Notably, Chris Yuen is up for reappointment, moving from an at-large member to the Hawaiʻi County seat. Governor Ige nominated Yuen and two new folks to the Board last week. Expect a lot of discussion about these nominations in the next legislative session because we are extremely disappointed in how the BLNR has abdicated its responsibility to the public to protect our natural and cultural resources. 

January 2019: Sierra Club Files Suit against BLNR for Trust Responsibilities

The Sierra Club of Hawaiʻi filed suit against BLNR for the issuance of temporary permits to access 12 streams in the East Maui watershed that our members regularly rely upon. These streams are not protected by the Water Commission’s “interim in-stream flow standards” that were issued for 27 other streams that are used for taro farming and gathering. These standards set a minimum amount of water that must be in each stream before water can be taken out of the watershed for other purposes. The 12 streams we are suing over do not have any such minimum protection and thus are at risk of being drained by A&B and its new partner, Mahi Pono. We want BLNR to do everything in its power to fulfill its legal obligation of ensuring the public’s natural resources are well protected. Trial is set for early 2020.

See Sierra Club’s memo in the case here.

Spring 2019: Stream activists overcome corporate diverters at the Capitol

Fighting tooth and nail the entire session, East Maui residents, cultural practitioners, farmers, and environmental activists banned together to overcome A&B and other corporate water diverters’ latest attempt at continuing their water theft. HB 1326—the Water Theft Bill—aimed to extend the holdover status of temporary permits (again) that allow corporations to continue to take millions of gallons of water from Hawaiʻi streams with very little oversight. This bill would have continued the unlawful historic practice of water theft, fails to protect Hawaiʻi’s streams and native species, and favors corporate profit over public needs.

Learn more at waiforall.com/free-the-streams

June 2018: Water Commission announces instream flow standards for some East Maui streams

In June 2018, the Water Commission announced new in-stream flow standards for the streams of East Maui. The decision fully restores many of the streams that support families and taro farms, while still allowing for most of the requested off-stream agricultural water use. Alexander & Baldwin requested 89 million gallons of water per day for agricultural use from 25 streams spanning 60,000 acres of land in East Maui. The Water Commission granted the most of A&B’s request, but required some of the water be pulled from groundwater sources. The Commission’s decision mandates the full restoration of 10 streams, and requires more water in several other streams. For more than 100 years, A&B diverted these streams for profit in the form of sugar plantations. For decades, many of the streams that once fed vibrant communities of taro farmers were drained.  Since 2001, Native Hawaiian Legal Corporation has represented Native Hawaiian families that rely on taro farming and traditional gathering practices to have the streams restored.

December 2016: BLNR Decision on Revocable Permit

In December 2016, A&B went before the Board of Land and Natural Resources (BLNR) seeking four new revocable permits (for the year 2017) to continue to divert water. A&B sought to continue diverting the same amount of water through these permits, despite the fact that sugar cane was no longer going to be cultivated and they had released no plans for the thousands of acres previously used to grow sugar. The board voted 5–2 to grant A&B and EMI the four permits the companies needed despite six hours worth of testimony from more than 40 individuals and organizations urging the board to deny the permits. The board’s decision to approve the renewal of the four revocable permits came with stipulations that were at least a step in the right direction. These stipulations include capping the amount of water A&B will be allowed to extract from the East Maui ecosystem at 80 million gallons per day (down from the previous 160 million gallons per day that the company has been taking up to this point), enforcing the July 2016 mandate that A&B fully restore stream flow in seven East Maui streams vital for taro farming, as well as adding Honomanu Stream to the list of the streams to be restored, and removing all structures adversely affecting the health of native stream species in the ecosystem.

Spring 2016: HB2501

In 2016, A&B went before the Hawaiʻi State Legislature and asked them to pass House Bill 2501, which would  retroactively legalize “hold-over permits,” which is the type of permit A&B and EMI were using to take water from East Maui streams. With the passage of HB2501, A&B would be able to continue to steal the water from East Maui farmers and the native ecosystem with legal impunity. In June 2016, the state House and Senate passed HB2501 into law – this “legitimized” the historic theft of millions of gallons of public water from the streams of East Maui by changing Hawaii Revised Statute 171 to allow for “hold-over” permits. Hold-over permits allows the Department of Land and Natural Resources to perpetually renew short-term permits for the use of 33,000 acres of public land without proper consideration and mitigation of the harms it causes to our unique natural environment and cultural practices. HB2501 did include one restriction: starting with the passage of the law, A&B is allowed to request a hold-over permit for up to 3 years. After that, it must request a longer-term lease, which triggers oversight mechanisms.

Why was HB2501 bad?

  • It allows one big corporation to waste millions of gallons of freshwater every day, while the streams run dry and Hawaiian farmers are starved from their land.
  • It circumvents the established process for requesting access to public water.
  • It rewards A&B for manipulating the permitting system for years.
  • It contradicts longstanding public policies in place to protect streams, freshwater, traditional farming practices, and our imperiled natural environment.

Background

Alexander & Baldwin (A&B), East Maui Irrigation (EMI), and Hawaii Commercial & Sugar (HC&S)

Who are A&B, EMI, and HC&S?

Alexander & Baldwin (A&B) was founded in Hawaii in 1870 by the descendants of missionaries as a sugar plantation company. At one point, A&B was one of the largest landowners and employers in Hawaiʻi. Because of its previous “too big to fail” status, A&B has received a lot of special treatment over the years… like access to the public’s water for cheap. Now that sugar no longer makes significant profits, the company has evolved into a commercial real estate investment trust (REIT). A&B does not grow sugar cane any longer in Central Maui; instead they have announced plans to transition to “diversified agriculture,” which includes raising cattle, growing crops for bio-fuel, and crops for livestock feed.

East Maui Irrigation (EMI) and Hawaii Commercial & Sugar Company (HC&S) are both subsidiaries of (aka owned by) A&B. EMI controls A&B’s water diversion system, and HC&S was A&B’s sugar cane company.

How does A&B take the water from the stream?

In the late 1800s, A&B constructed a large system of diversions and grates to redirect stream water from its stream beds to pipes that brought the water to Central Maui for use in sugar cane agriculture. This diversion system was cared for by East Maui Irrigation (EMI), a subsidiary of A&B. Because water is a public resource, nowadays A&B is not allowed to take the water without permission. But A&B and EMI owns the physical diversion system – most of which sits on state-owned land.

What does A&B need a permit or lease for?

A&B/EMI needs permits for 2 very different actions:

1) Permit or lease to access the state land on which its diversion system sits. This permit process is overseen by the State Board of Land and Natural Resources (BLNR).

2) Permit to take public water from the streams. This process is overseen by the State Commission on Water Resource Management (CWRN, affectionately called c-worm). CWRM determines how many millions of gallons per day (MGD) of water A&B is allowed to divert.

In the distant past, A&B didn’t need permission to take public water. But nowadays, there is far more awareness of how diverting stream water ruins stream ecology and decimates cultural practices. Decades ago, A&B was supposed to apply for a longer-term lease to continue diverting water – this would have triggered a mandatory Environmental Impact Statement process, which guarantees a level of public scrutiny that would show the public just how harmful these diversions are. So instead, for decades A&B has been skirting past this process by applying for short term “hold-over” permits, which are renewed annually and have almost no mandatory oversight attached to them. For decades, the BLNR rubber stamped these hold-over permits, even though they were illegal. In 2016, the state legislature passed HB2501, which made the use of hold-over permits legal for up to 3 years. In 2017, A&B did finally start the process to apply for a long term lease, and an Environmental Impact Statement Preparation Notice was issued.

Does A&B need all the water that they take from the stream?

No. A&B is a water hog. The current recommendation before the Water Commission for the in-stream flow standards for the East Maui streams concludes that A&B has diverted and wasted around 41 million gallons of water every day for decades — they simply do not need all the water they are taking. They are hogging the public’s water for their own potential benefit, and harming the health of our people and our environment at the same time.

If we restore the water to the stream, will A&B be without water?

No. A&B has plenty of water. Without the current “hold-over permits” giving them access to East Mauiʻs stream water, A&B still has at least 80 million gallons of water a day (mgd) from private sources that they control. 80 mgd is enough for diversified agriculture. If all of A&B’s land in central Maui were cultivated in diversified crops, then according to the Water Commission they would need around 75 million gallons a day.

What about the workers? If water is restored to the streams, will people be unemployed?

No, stream water restored will not lead to anyone being unemployed. In fact, HC&S already closed and laid off the majority of its workforce because the company could not compete with cheaper sugar grown in other parts of the world. Restoring water to the streams is not the reason HC&S shut down.

There are opportunities to create new jobs in diversified agriculture. The closing of HC&S opens up the opportunity for new kinds of agriculture to take root in Maui. Diversified agriculture — lots of small farms growing a wide variety of products — is the best course of action for the future of agriculture in Hawaiʻi. And, as water is restored to the streams there will be more opportunities for people who have lived along the streams for generations to return to traditional farming, if they would like to.

The main thing that must be done when deciding how to allocate water resources is to make sure there is a balance between the needs of the stream ecosystem, the taro farmers, and the other forms of agricultural uses. That is where the Commission on Water Resource Management comes in and why an Environmental Impact Statement is so important.

How did A&B get access to the public’s water in the first place?

Since the early days of sugar plantations in Hawaii, A&B/EMI/HC&S has taken millions of gallons of water every day from the East Maui streams without consideration for the harm to the ecosystem or proper compensation to other water users, like traditional taro farmers. In the early 2000’s, A&B sought a 30-year lease for thousands of acres of public trust land and permits to continue diversion of unlimited amounts of public water.

A&B leases were challenged by East Maui residents who were legally entitled to adequate water resources in their streams and taro patches, but A&B/EMI/HC&S were still able to divert unlimited water, through the form of month-to-month revocable permits given to them by the Department of Land and Natural Resources, paying a total of $160,000 a year to “transport” nearly 60 billion gallons. These permits are summarily renewed every year — no environmental impact statement, no mitigation for the harm to the ecosystem or the taro farmers, no public auction. The law does not technically allow for this practice that is now known as “hold over permits.” The Department of Land and Natural Resources invented this concept on its own for the exclusive benefit of A&B and its subsidiaries. That is why A&B went before the Legislature in 2016 and asked them to retroactively legalize this concept, so that they can continue to steal the water from East Maui farmers and the native ecosystem with impunity.

Click here for a timeline about the East Maui water issue

E OLA I KA WAI. WATER IS LIFE.