By Brian Perry
December 12, 2024
The Board of Land and Natural Resources is expected to take action Friday on a staff recommendation to issue a revocable permit to Alexander & Baldwin and subsidiary East Maui Irrigation Co. for the use of surface stream water.
The proposed revocable permit would amend and take the place of an earlier permit approved by the board on Dec. 8, 2023. At that meeting, the Sierra Club of Hawaiʻi requested a contested case proceeding, which the board ultimately decided to deny. The use of East Maui water has been hotly disputed for years between A&B and environmentalists/East Maui taro farmers.
Also on this Friday’s board agenda, the panel is set to deny a Sierra Club request for a contested case for the water use permit.
The Land Board meeting is scheduled for 9 a.m. Friday in the DLNR Board Room at 1151 Punchbowl St., 1st Floor, in Honolulu and online via Zoom: meeting ID: 828 4472 6058
The Zoom link is: https://us06web.zoom.us/j/82844726058; and a live stream YouTube link is: https://youtube.com/live/uwqZPMXVcBA
According to a report prepared for the board by the Land Division of the Department of Land and Natural Resources, staff recommends the following allocations of East Maui water:
- 3,263 gallons per day, multiplied by the total amount of planted acreage used for diversified agriculture and other existing uses.
- 5 million gallons per day to the Maui County Department of Water Supply for its Kamole Weir Water Treatment Plant.
- 1 million gallons per day for the Maui County Kula Agricultural Park.
The recommended water allocations are based on a monthly average.
The amount of water recommended for diversified agricultural use is based on the median three-month average of water used daily by the applicant between January and October 2024.
The average amounts used for currently existing historical and non-agricultural uses, reservoir, fire protection, dust control, hydroelectric purposes, and other uses for those same months were also included, according to the staff report. The average amount of water diverted by the applicant from streams on privately owned land and not subject to the revocable permit for those months were subtracted; then the remainder amount was divided by the average total planted acreage through October 2024, the report says.
“Staff recommends that rather than establish a fixed total maximum amount allowed to be diverted under the revocable permit, the Board approve a variable total amount equal to the allocation of 3,263 gad multiplied by the current total planted acreage,” the report says. “As more acreage is planted, the maximum amount of water allowed to be diverted would increase accordingly. This would alleviate the need to conjecture how much acreage will be planted in 2025. Staff would be able to ensure compliance by reviewing the monthly water use reports that would indicate the total amount diverted and then dividing by the total planted acreage to determine whether the Applicant is in compliance with the 3,263 gad limit.
For the Maui County water allocations, the staff noted that since January 2024 until October 2024, the County of Maui has an overall average use of 2.01 million gallons per day for the Department of Water Supply and 0.55 mgd for the Kula Agricultural Park.
The staff also noted that during that same period, the monthly average use by the Department of Water Supply never exceeded 4 mgd and the monthly average use by the Kula Agricultural Park never exceeded 1.0 mgd.
“Staff believes that the recommended limits provide enough water to meet the County’s needs and also incentivize the County to more efficiently use of the water diverted on its behalf such as expand storage capacity. Also, it will reduce the amount of water currently diverted for the County (total of 7.5 mgd), leaving an additional 2.5 mgd of water in the streams to support stream habitat and instream uses.”
The staff recommendation also calls for a board finding that the existing final environmental impact statement covers the proposed revocable permit and that, by approving the revocable permit, under more than three dozen conditions, “would serve the best interests of the state and is consistent with the public trust doctrine.”
Monthly rent for water use is $23,598, or $283,176 annually. A collateral deposit equal to twice the monthly rent is required. The recommended permit begins Jan. 1, 2025. The applicant also pays $139,463 annually to contribute, either in funds or in-kind services, for watershed management activities.
The revocable permit is temporary, but allows for the continuation of existing water uses until a long-term water license can be issued via public auction. Staff said it believes a single permit (instead of four separate ones) that consolidates all revocable permit requirements into a single permit “would result in greater clarity and transparency and allow for the use of the most recent revocable permit standard form.”
Among recommended permit conditions is the requirement that “there shall be no waste of water.”
“System losses and evaporation shall not be considered as a waste of water provided that system losses do not exceed 22.7%,” the report says. “The rate of system losses shall be calculated as the amount of water diverted or extracted into the Mahi Pono field system that is not used for diversified agriculture purposes, excluding the amount of water diverted for the County of Maui; then divided by the total amount of water diverted or extracted into the Mahi Pono filed system.”
In April, the Land Board successfully appealed a 1st Circuit Court ruling that had blocked it from continuing revocable permits for water diversions from East Maui streams to Central Maui and Upcountry.
The lower court ruling stemmed from a November 2020 challenge by the Sierra Club and its request for a contested case hearing for any revocable permits for the calendar year 2021.
During a November 2020 public meeting, while the BLNR was considering the continuation of revocable permits, Sierra Club requested a contested case hearing on the issuance of any revocable permits for calendar year 2021.
The BLNR denied the request and voted to continue the permits subject to terms and conditions. The Sierra Club appealed to the Environmental Court of the 1st Circuit, and it ordered the Land Board to hold a contested case hearing, modify terms of permits and reduce the amount of water Alexander & Baldwin and its subsidiary East Maui Irrigation Co. could divert from streams until the contested case hearing was held and a decision rendered. That decision was appealed and ultimately reversed by the Hawaiʻi Intermediate Court of Appeals in favor of the Land Board, A&B and other appellants.