A & B Water Permits

Over the last century, Alexander and Baldwin (A&B) built and expanded an impressive irrigation system to divert hundreds of millions of gallons of water daily (mgd) from east Maui to their sugar plantation lands in central Maui. The East Maui Irrigation system consists of 388 separate intakes, 24 miles of ditches, and 50 miles of tunnels, as well as numerous small dams, intakes, pipes and flumes. This legacy system draws water from privately owned A&B lands as well as 27 streams that are regulated by the State Commission on Water Resource Management (CWRM).

Although A&B agreed to release a few million gallons per day into some streams, many other streams remain perpetually dry. The taro farmers of Keanae and other east Maui communities have long demanded increased stream flow, based on the Public Trust Doctrine that places the highest priority on minimum instream flow standard (IFS) to preserve the environmental health of the watershed and near shore waters. The second priority is indigenous water rights such as taro farming. Water diversion comes last.

Since 2001, A&B has held temporary, revocable, month-to-month permits to continue diverting an average 165 to 190 mgd. Even before these temporary permits were granted, legal challenges to return water to the streams have been pursued by east Maui residents through the Native Hawaiian Legal Corporation and the Office of Hawaiian Affairs.

On January 8, 2016, the court ruled that A&B’s four revocable water permits could no longer be approved indefinitely and that the long term lease process must be followed. The court further ruled in the absence of an established IFS from CWRM, the Board of Land and Natural Resources should make the appropriate determinations. The government agencies for moving these permits are notoriously understaffed and slow moving, but there is a process to move forward.

A&B has whipped up fear in the farming and ranching community, claiming that every revocable permit (about 300 land leases and nine other water leases) may now be invalidated. However, the court ruling only applies to the four specific permits identified in the lawsuit. A&B claims that Upcountry residents may lose their drinking water, but the court issued a stay to protect residential water supply.

With all this fear now stoked up, A&B is leading the lobbying efforts for HB2501, a bill that would allow anyone with a revocable permit to retain it until a long-term lease is granted. In other words, A&B would retain rights on all the water they have ever used without having to compete with any other potential user, indefinitely.

Hawaiian Cane and Sugar, A&B’s subsidiary that once farmed 36,000 acres, will cease operations by the end of this year and they now need only a fraction of the water once used. Diversified agriculture requires one-half as much water as sugar cane and the company has an additional 75 mgd of privately owned water resources. By all accounts, there is plenty of water.

I encourage A&B to get started on their EIS for a long term water permit. If they need some certainty in the meantime, they should seek a stay from the court. Of course, the court would want to know how much water is actually needed and how much time is needed to complete the process. “All of it, forever,” is not likely a winning argument.

I strongly support more staffing and expertise to improve processing of permits and management of our land and water resources. I vehemently oppose bills like HB2501 that seek to overcome an inconvenient court ruling and would destroy the permitting process for our natural resources.