But highlights that the ruling clearly does not affect small farmers
Honolulu, Hawaiʻi (Wednesday June 19, 2019) — Yesterday the Intermediate Court of Appeals issued an opinion in Carmichael v. Board of Land and Natural Resources. The ICA ruling essentially says that the lower court should have fully heard arguments on two of the issues brought up by the Carmichael case and therefore sent the case back to the lower court to make findings on these two issues. The ICA also ruled that an environmental impact statement is not required for the issuance of revocable water permits, even though it is clear that there is nothing “temporary” about the permits that allow large diversions of natural streamflow year after year—for over 15 years—with no review of the impacts to the ecosystem and the affected communities.
In 2016, a lower court ruled that the state’s practice of issuing “temporary holdover” permits, year after year, was not allowed under state law. Immediately after this decision, Alexander and Baldwin went to the legislature to modify that law. They were successful, except that the modification of the law that allowed their temporary holdover permits to continue, expired at the end of 2019. Then, the 2016 lower court ruling was cited in this year’s legislative session, as the justification for a push to pass House Bill 1326—extending the practice of “temporary permits,” with no environmental review for another seven years. Alexander and Baldwin, sold their lands and their East Maui Irrigation water diversion system to a group of mainland and Canadian investors in late 2018, but the contract for the sale requires A&B to refund $62 million if a certain amount of stream water diverted from public lands in East Maui was not made available to the new owners. HB 1326 was ultimately deferred this session.
In response to the ICA’s decision, Marti Townsend, Director for the Sierra Club of Hawaiʻi, issued the following statement:
“We strongly disagree with the court’s decision that A&B need not complete an environmental impact statement for its revocable permits to use water. It is clear that A&B’s water diversions in East Maui harm the people of East Maui and the streams they depend on. However, the court did make clear that their decision is only applicable to the parties in this case. Because this ruling is unpublished, it does not set precedent for any other water permits issued pursuant to this particular statute and cannot be cited in other cases. This means that small water users, the Farm Bureau, and Cattlemen’s Association can relax. As we have said all along, no farmers or ranchers will lose access to water as a result of HB1326 not passing this last legislative session. It remains to be seen though if A&B will lose the $62 million it was paid for ensuring the new buyer of its plantation lands has access to 30 million gallons of water a day through 2026. A&B has no right to promise away the public’s water.”