Restore Streams, Revitalize Native Hawaiian Communities
East Maui Streams
Photo by Nic Torrey
For over a century 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.
Water is a resource held in public trust for the people of Hawaiʻi. The public trust doctrine prioritizes customary, traditional practices and the health of native streams and coastal life over private commercial uses. Despite this, water rights have been mismanaged and private profits have been put over people and the environment—leaving dry rock beds, stagnant water and communities without water.
Progress is being made and water is being released from the grips of corporate entities but there is still a long way to go. Communities are employing every tool they have to fight for the return of their water. There are many facets to this issue, here are just a few:
Photo by Nate Yuen
Revocable Permits
Water diverters—like A&B, and now Mahi Pono—are required by law to obtain a permit or lease to access the public lands on which the public water is diverted. Long term lease applications require in depth review processes, like the completion of an Environmental Impact Statement and watershed management plans. For over a decade, the Board of Land and Natural Resources has issued short term, “holdover” revocable permits for water diversions, allowing diverters to avoid the rigorous review needed for a long term lease.
In 2016, the court ruled that the use of revocable permits violated state law and all existing permits invalidated. Soon thereafter, the legislature amended the law (Act 126) to legalize the hold over of revocable permits for three more years in order to provide water diverters time to prepare their long term lease applications.
The authority issued by Act 126 lapsed in 2019 but BLNR has approved the renewal of revocable permits to date—with little accountability. A&B attempted to change the law yet again in 2019 with House Bill 1326 but the people prevailed and the bill was not passed.
Despite a pending lawsuit from the Sierra Club, in mid-November, BLNR approved A&B/Mahi Pono’s permits for 2021. Read more about the hearing here.
Litigation
Sierra Club v. Board of Land and Natural Resources, Alexander & Baldwin and East Maui Irrigation
The Sierra Club of Hawaiʻi sued the Board of Land and Natural Resources for the issuance of temporary permits to access 13 streams in the East Maui watershed. 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. The 13 streams we are suing over do not have any such minimum protections and thus are at risk of being drained by A&B and 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.
On Tuesday, April 6, 2021 the court issued its decision—ruling against us. Even though the court recognized that there is “no meaningful” protection of the 13 streams we are seeking to defend, at the end of the day its ruling decided that these streams are less important than other streams. But it isn’t over, in or outside of, the court. We’ve filed an appeal to the decision—stay tuned for more. Read more about what happened during the virtual trial here.
Carmichael vs. BLNR and Alexander & Baldwin
In March 2022, the Hawaiʻi Supreme Court ruled in the landmark case, Carmichael vs. BLNR and Alexander & Baldwin, that the state’s ongoing practice of permitting the diversion of over 100 million gallons of water per day from 33,000 acres of ceded lands violated state leasing laws and is subject to environmental review. This final decision comes after more than 30 years and will impact the fate of stream ecosystems across the islands.
Carmichael vs. BLNR and Alexander & Baldwin, called for the end of the Board of Land and Natural Resources’s practice of issuing temporary holdover permits to Alexander & Baldwin, which has allowed the corporation to divert unlimited amounts of water for over 13 years.
Circuit Court Judge Nishimura ruled in 2016 that BLNR’s holdover practice violated state law. Then in June 2019, an Intermediate Court of Appeals overturned Judge Nishimura’s ruling and sent the case back to lower court. The plaintiffs, Na Moku Aupuni O Koʻolau Hui, asked the Hawaiʻi Supreme Court to review the case in September, to which the court agreed.
Photo Credit: OHA
Leases + Environmental Impact Statements
Alexander & Baldwin first requested a 30-year Water Lease from the Board of Land and Natural Resources in 2001 and has recently acted on that request with a long-awaited application and Draft Environmental Impact Statement. If approved as is, this lease would allow A&B and its corporate partner, Mahi Pono, to continue to divert East Maui streams flowing through public lands. Before a lease like this can be approved, an Environmental Impact Statement (EIS) must be completed. East Maui’s communities have waited over 20 years for an EIS that discusses the real impacts of the longtime East Maui stream diversions.
A&B released its Draft EIS in Fall 2019. The EIS should document all the ways the lease proposal could impact the environment and whether these impacts can be mitigated. BLNR then uses the EIS to determine whether or not to approve a lease to A&B and Mahi Pono.
