Judge Jeffrey Crabtree of Hawaii’s Environmental Courts said in a written order Friday that A&B — a major real estate company in Hawaii — and subsidiary East Maui Irrigation Co. must limit diversion of the water to no more than 25 million gallons per day.
“This should be more than enough water to allow all users the water they require, while hopefully reducing apparent or potential waste,” Crabtree wrote.
A&B did not respond to a request for comment. The Sierra Club of Hawaii, which has long challenged A&B’s state-approved permits to divert the water, called Crabtree’s ruling “a big deal.”
“We are very pleased that the court reviewed all of the evidence and made a thoughtful determination that serves the legitimate water needs of the community and protects the health of these streams,” David Kimo Frankel, attorney for the Sierra Club, said in a press release Monday.
“This is a fair and balanced decision, a true win-win-win all the way around,” he added.
The Sierra Club estimates that A&B had been diverting more than 45 million gallons daily. The environmental group said that the figure of 25 million gallons more closely matches actual water used based on reports to the Board of Land and Natural Resources.
Crabtree cited the Sierra Club in his ruling, stating that “it was the only party which offered 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.”
The land board in November authorized A&B and Mahi Pono — a Maui farming business seeking to transform 41,000 acres of A&B’s former sugar cane land into diversified agriculture — to continue diverting water from dozens of streams via EMI. A&B sold the land to Mahi Pono for $262 million in 2018.
Mahi Pono declined to comment.
A Longstanding Issue
The state’s Environment Courts were established by the Legislature in 2014, making Hawaii at the time only the second state after Vermont to have a statewide environmental court.
The courts, according to the state judiciary, have “broad jurisdiction, covering water, forests, streams, beaches, air, and mountains, along with terrestrial and marine life.”
The battle over water rights involves various state agencies, several prominent businesses, conservationists and Native Hawaiian taro farmers in east Maui who need lots of water for the crop. The origins of the water diversion extend back to the plantation era of the 19th century, when sugar was the Hawaiian Kingdom’s top export.
For now, environmentalists and farmers are claiming victory.
“Just as upcountry Maui residents are being asked to conserve water right now, the court recognized that Mahi Pono also must do all that it can to reduce waste in its own water usage,” said Marti Townsend, director for the Sierra Club of Hawaii, in the press release.
Crabtree is the same judge who in April sided with BLNR and Alexander & Baldwin in a case challenging temporary water permits issued in 2018 and 2019, the Honolulu Star-Advertiser reported.
The judge ruled at that time that the board acted properly when it allowed the diversion of stream water in those permits, “saying Hawaii’s public-trust doctrine imposes a dual mandate on the state to both protect water resources and make maximum reasonable beneficial use of those resources.”
In his latest order, Crabtree made clear that the matter should ultimately be resolved by other parties: “The court repeats its prior statements that it does not want to be in charge of the specifics of east Maui water distribution. That role should be filled by others with more expertise and experience. But the court will not risk a vacuum which causes hardship to those on Maui who rely on the water at issue.”
That ruling was hailed as a victory by the DLNR and A&B.
But the fight over water is not over. The BLNR is expected to take up the matter of A&B’s long-term water permits later this month.
Lucienne de Naie, a resident of Huelo in east Maui, was pleased with Crabtree’s ruling.
“These streams often run dry in sections, putrid puddles breed mosquitoes, old pipes and other debris litter the stream banks, and the native stream species do not have enough water to thrive in,” de Naie was quoted as saying in the press release. “And all of us who live in east Maui rely on this water as well for our own homes and farms in east Maui.”
Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.
Read Judge Crabtree’s order: