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Restore streams, revitalize Native Hawaiian communities

Sierra Club Maui Group stands for the protection of our native ecosystem and the rights of traditional taro farmers to the public water in our streams. For decades, a private corporation, Alexander & Baldwin has diverted public water from streams in East Maui. 

The public trust doctrine prioritizes customary, traditional practices and the health of native streams and coastal life over private commercial uses. Current A&B diversion continue to remove most of the water from several East Maui streams, leaving dry rock beds and stagnant water, however the practice has never undergone any time of environmental review. Demonstrating a sever lack of stewardship over their private water, A&B loses an average of 41 million gallons per day mostly due to unlined reservoirs and aging pipes. This is unacceptable and detrimental to cultural practices and public health of stream ecosystems and East Maui residents.


Timeline for the East Maui water issue here


Recent Events

April 2019: Hawaii Senate Kills Bill to Extend Revocable Permit

The Senate Committee on Ways and Means moved to defer the “Water Theft Bill,” HB 1326, indefinitely on April 4, 2019, according to a Sierra Club of Hawaiʻi press release issued on April 5.

This surprising move by Committee Chair Donovan Dela Cruz followed the Committee on Water and Land’s vote to pass the bill with amendments. The bill was being considered in a joint committee hearing and a division in votes results in the bill not advancing.

“With this historic vote, lawmakers restored protections for Hawaiʻi’s streams and people’s faith in our democracy,” said Marti Townsend, director of the Sierra Club of Hawaiʻi. “I hope this vote is a sign that we are moving past the days of Alexander & Baldwin pocketing immense profit off the public’s water, while streams ran dry and the people of East Maui and Kauaʻi suffered.”

Prior to the deferral, Water and Land Chair Kai Kahele and his committee voted to pass a new version of the bill that would protect water used by small farmers and ranchers but prohibit Alexander & Baldwin from continuing their stream diversions that had been invalidated in the First Circuit Court in 2016.

“We are grateful for Sen. Kahele’s dedication to making this bill into the best version it could be and taking a strong stand for Hawaiʻi’s streams and the lives that depend on them,” said Townsend. “His proposed amendments were thoughtful and truly put people over corporations.”

During the public hearing on Tuesday, this bill received more than 1,000 pieces of testimony and nearly six hours of public testimony. As senators questioned agency officials and water users at the hearing, many of the fear tactics used to justify the bill were debunked. It was made clear that water used by Upcountry Maui residents was not in jeopardy if this bill did not pass. Also, the small farmers of Kauaʻi and ranchers of Kaʻū were also not barred from receiving new temporary permits, so their access to water is not interrupted by the failure to pass HB1326.

In decision making on the bill yesterday, senators continued to question the Department of Land and Natural Resources about the department’s fault in processing long-term lease requests but also questioned Alexander and Baldwin, which had not been done in the bill’s previous hearing. Sens. Kahele (Hilo) and Clarence Nishihara (Mililani) pressed the corporation about the recent sale of their old sugar plantation in Central Maui. Their line of questions made clear that A&B should have never included Hawaiʻi’s public trust waters in the $262 million land deal. By the terms of the sales agreement, if A&B can no longer divert at least 30 million gallons of water a day from East Maui streams, then it owes the new buyer, Mahi Pono, a rebate of $62 million.

HB 1326, which sought to extend temporary water diversion permits for Alexander and Baldwin, is one of the most contentious bills of the 2019 Legislative Session.


January 2019: Sierra Club Files Suit against BLNR for Trust Responsibilities

The BLNR repeatedly approved renewed revocable water permits to A&B for almost 20 years without knowing how much water was in the streams, how much A&B was diverting from each stream and how much water was left after diverting from 33,000 acres of public lands. It didn’t require that A&B control invasive species or remove debris and trash. When restoration of certain streams was decided, the BLNR did not include a deadline and did not follow up to ensure that the diversions ended. In summary, it did not fulfill its responsibilities for public trust resources.

See Sierra Club’s memo in the case here.


December 2016: BLNR Decision on Revocable Permit

In December 2016, A&B went before the Board of Land and Natural Resources (BLNR) seeking four new revocable permits (for the year 2017) to continue to divert water. A&B sought to continue diverting the same amount of water through these permits, despite the fact that sugar cane was no longer going to be cultivated and they had released no plans for the thousands of acres previously used to grow sugar. The board voted 5–2 to grant A&B and EMI the four permits the companies needed despite six hours worth of testimony from more than 40 individuals and organizations urging the board to deny the permits.

The board’s decision to approve the renewal of the four revocable permits came with stipulations that were at least a step in the right direction. These stipulations include capping the amount of water A&B will be allowed to extract from the East Maui ecosystem at 80 million gallons per day (down from the previous 160 million gallons per day that the company has been taking up to this point), enforcing the July 2016 mandate that A&B fully restore stream flow in seven East Maui streams vital for taro farming, as well as adding Honomanu Stream to the list of the streams to be restored, and removing all structures adversely affecting the health of native stream species in the ecosystem.


Spring 2016: HB2501

In 2016, A&B went before the Hawaiʻi State Legislature and asked them to pass House Bill 2501, which would  retroactively legalize “hold-over permits,” which is the type of permit A&B and EMI were using to take water from East Maui streams. With the passage of HB2501, A&B would be able to continue to steal the water from East Maui farmers and the native ecosystem with legal impunity. In June 2016, the state House and Senate passed HB2501 into law – this “legitimized” the historic theft of millions of gallons of public water from the streams of East Maui by changing Hawaii Revised Statute 171 to allow for “hold-over” permits. Hold-over permits allows the Department of Land and Natural Resources to perpetually renew short-term permits for the use of 33,000 acres of public land without proper consideration and mitigation of the harms it causes to our unique natural environment and cultural practices. HB2501 did include one restriction: starting with the passage of the law, A&B is allowed to request a hold-over permit for up to 3 years. After that, it must request a longer-term lease, which triggers oversight mechanisms.

Why is HB2501 bad?

  • It allows one big corporation to waste millions of gallons of freshwater every day, while the streams run dry and Hawaiian farmers are starved from their land.
  • It circumvents the established process for requesting access to public water.
  • It rewards A&B for manipulating the permitting system for years.
  • It contradicts longstanding public policies in place to protect streams, freshwater, traditional farming practices, and our imperiled natural environment.

Background

Alexander & Baldwin (A&B), East Maui Irrigation (EMI), and Hawaii Commercial & Sugar (HC&S)

Who are A&B, EMI, and HC&S?

Alexander & Baldwin (A&B) was founded in Hawaii in 1870 by the descendants of missionaries as a sugar plantation company. At one point, A&B was one of the largest landowners and employers in Hawaiʻi. Because of its previous “too big to fail” status, A&B has received a lot of special treatment over the years… like access to the public’s water for cheap. Now that sugar no longer makes significant profits, the company has evolved into a commercial real estate investment trust (REIT). A&B does not grow sugar cane any longer in Central Maui; instead they have announced plans to transition to “diversified agriculture,” which includes raising cattle, growing crops for bio-fuel, and crops for livestock feed.

East Maui Irrigation (EMI) and Hawaii Commercial & Sugar Company (HC&S) are both subsidiaries of (aka owned by) A&B. EMI controls A&B’s water diversion system, and HC&S was A&B’s sugar cane company.

How does A&B take the water from the stream?

In the late 1800s, A&B constructed a large system of diversions and grates to redirect stream water from its stream beds to pipes that brought the water to Central Maui for use in sugar cane agriculture. This diversion system was cared for by East Maui Irrigation (EMI), a subsidiary of A&B. Because water is a public resource, nowadays A&B is not allowed to take the water without permission. But A&B and EMI owns the physical diversion system – most of which sits on state-owned land.

What does A&B need a permit or lease for?

A&B/EMI needs permits for 2 very different actions:

1) Permit or lease to access the state land on which its diversion system sits. This permit process is overseen by the State Board of Land and Natural Resources (BLNR).

2) Permit to take public water from the streams. This process is overseen by the State Commission on Water Resource Management (CWRN, affectionately called c-worm). CWRM determines how many millions of gallons per day (MGD) of water A&B is allowed to divert.

In the distant past, A&B didn’t need permission to take public water. But nowadays, there is far more awareness of how diverting stream water ruins stream ecology and decimates cultural practices. Decades ago, A&B was supposed to apply for a longer-term lease to continue diverting water – this would have triggered a mandatory Environmental Impact Statement process, which guarantees a level of public scrutiny that would show the public just how harmful these diversions are. So instead, for decades A&B has been skirting past this process by applying for short term “hold-over” permits, which are renewed annually and have almost no mandatory oversight attached to them. For decades, the BLNR rubber stamped these hold-over permits, even though they were illegal. In 2016, the state legislature passed HB2501, which made the use of hold-over permits legal for up to 3 years. In 2017, A&B did finally start the process to apply for a long term lease, and an Environmental Impact Statement Preparation Notice was issued.

Does A&B need all the water that they take from the stream?

No. A&B is a water hog. The current recommendation before the Water Commission for the in-stream flow standards for the East Maui streams concludes that A&B has diverted and wasted around 41 million gallons of water every day for decades — they simply do not need all the water they are taking. They are hogging the public’s water for their own potential benefit, and harming the health of our people and our environment at the same time.

If we restore the water to the stream, will A&B be without water?

No. A&B has plenty of water. Without the current “hold-over permits” giving them access to East Mauiʻs stream water, A&B still has at least 80 million gallons of water a day (mgd) from private sources that they control. 80 mgd is enough for diversified agriculture. If all of A&B’s land in central Maui were cultivated in diversified crops, then according to the Water Commission they would need around 75 million gallons a day.

What about the workers? If water is restored to the streams, will people be unemployed?

No, stream water restored will not lead to anyone being unemployed. In fact, HC&S already closed and laid off the majority of its workforce because the company could not compete with cheaper sugar grown in other parts of the world. Restoring water to the streams is not the reason HC&S shut down.

There are opportunities to create new jobs in diversified agriculture. The closing of HC&S opens up the opportunity for new kinds of agriculture to take root in Maui. Diversified agriculture — lots of small farms growing a wide variety of products — is the best course of action for the future of agriculture in Hawaiʻi. And, as water is restored to the streams there will be more opportunities for people who have lived along the streams for generations to return to traditional farming, if they would like to.

The main thing that must be done when deciding how to allocate water resources is to make sure there is a balance between the needs of the stream ecosystem, the taro farmers, and the other forms of agricultural uses. That is where the Commission on Water Resource Management comes in and why an Environmental Impact Statement is so important.

How did A&B get access to the public’s water in the first place?

Since the early days of sugar plantations in Hawaii, A&B/EMI/HC&S has taken millions of gallons of water every day from the East Maui streams without consideration for the harm to the ecosystem or proper compensation to other water users, like traditional taro farmers. In the early 2000’s, A&B sought a 30-year lease for thousands of acres of public trust land and permits to continue diversion of unlimited amounts of public water.

A&B leases were challenged by East Maui residents who were legally entitled to adequate water resources in their streams and taro patches, but A&B/EMI/HC&S were still able to divert unlimited water, through the form of month-to-month revocable permits given to them by the Department of Land and Natural Resources, paying a total of $160,000 a year to “transport” nearly 60 billion gallons. These permits are summarily renewed every year — no environmental impact statement, no mitigation for the harm to the ecosystem or the taro farmers, no public auction. The law does not technically allow for this practice that is now known as “hold over permits.” The Department of Land and Natural Resources invented this concept on its own for the exclusive benefit of A&B and its subsidiaries. That is why A&B went before the Legislature in 2016 and asked them to retroactively legalize this concept, so that they can continue to steal the water from East Maui farmers and the native ecosystem with impunity.

 

A Legal History and Overview

East Maui streams and Native Hawaiian taro farming

For over a century, Alexander & Baldwin, Inc. (A&B) and its subsidiary, the East Maui Irrigation Company, have diverted millions of gallons of water daily from dozens of streams across 33,000 acres of public land in East Maui to supply A&B’s sugar plantations and, more recently, other agricultural activities. The diversions have devastated native stream ecosystems and have harmed native Hawaiian families that rely on taro farming and traditional gathering practices. Hawaii primarily grows wetland taro, or kalo in Hawaiian, in patches (lo`i) that are directly irrigated from rivers or streams because taro thrives in aerated, moving water. Many of the streams that once fed vibrant communities of taro farmers were drained by A&B’s diversions, and between the 1880’s and 1980’s taro farming declined from several hundred acres to just 20 acres.

For more than two decades, Native Hawaiian cultural practitioners and local East Maui farmers have been working – through a combination of lobbying, administrative advocacy and litigation – to restore the stream flow necessary for taro farming and for native species’ habitat. The Hawaii Chapter and its Maui Group have been supporting those efforts in a variety of ways, including conducting educational “stream hikes” in the East Maui area, submitting member declarations to support litigation by the taro farmers, and testifying at various administrative hearings.

In January 2016, A&B announced plans to cease sugar production at the last remaining plantation on the Hawaiian Islands, and its Maui plantation is now closed. A&B has nevertheless continued to divert massive amounts of water from Maui’s streams for “diversified agriculture,” which includes raising cattle and growing crops for bio-fuel livestock feed. The overall campaign achieved some notable success when the Water Resource Management Commission set inflow standards for some streams in the area, which forced A&B to reduce its diversions to approximately 25 million gallons of water daily in 2016 and 2017. In 2018, A&B requested, and the Board allowed, an increase in the diversion because it is a cheaper source of water than alternatives, such as pumping from its private wells. Long term, residents fear that A&B will use the water for development on the island, rather than for agriculture.

Alexander & Baldwin’s recent water diversions

Although A&B owns and operates the physical diversion system—which was first constructed in the late 1800’s—most of the system sits on state-owned land; and because water is a public resource in Hawaii, A&B must obtain permits from the state to divert the water. For years, the state agency responsible for managing Hawaii’s public lands – the Land and Natural Resources Board – has allowed A&B to divert this water without conducting any environmental review under the Hawaii Environmental Policy Act, and without providing any justification for the water diversions or information about the quantity of water taken from each stream. In 2000, the Board issued four revocable, annual permits to A&B allowing the company to use about 33,000 acres of public land to divert hundreds of millions of gallons of public water daily from dozens of streams flowing through East Maui for A&B’s commercial sugar operations. In 2001, A&B requested that the Board issue a 30-year lease for the same stream diversions covered by the soon-to-expire annual permits and that the Board meanwhile allow the diversions to continue under those permits. Given the extensive public opposition, the Board refused to act on A&B’s request for the 30-year lease but nevertheless extended the company’s water diversions through an unprecedented “holdover permit” on a month-to-month basis, pending the results of a “contested case” hearing before the Water Commission that the East Maui taro farmers had separately requested in order to establish minimum stream flow standards for 27 of the streams. Before A&B’s four holdover permits expired in 2002, the Board once again granted a “holdover of the existing revocable permits.”

In 2003, the Board approved A&B’s 30-year lease application to use state lands for the diversion activities. East Maui taro farmers successfully appealed the decision to state court, arguing that
the Board must complete an “environmental assessment” (EA) under the Hawaii Environmental Policy Act to evaluate the impacts of A&B’s stream diversions. The court prohibited the Board from issuing the 30-year lease until the agency analyzes the impacts of the company’s proposed use of public lands and water, but the court did not address whether an EA is required for the Board’s approval, and extensions, of the annual, revocable permits.

For the next decade, the Board continued to annually renew the “holdover permits” for water diversions without conducting any environmental review. On average during this period, A&B diverted more water from East Maui streams than is consumed by the entire island of O’ahu (160 million gallons of water daily).

In 2015, the Water Commission finally initiated the contested hearing, which the taro farmers had first requested in 2001, on minimum stream flow standards for the 27 streams at issue and ultimately set withdrawal allowances. However, in August 2016, after A&B announced its plans to close its Maui sugar plantation, the Water Commission re-opened the contested case hearing for the limited purpose of determining how much water is needed for diversified agriculture and to rebalance instream and offstream uses. As a result, the contested case remains pending, and the taro farmers have continued to challenge the ongoing permit renewals, through contested case hearing requests and litigation, with limited success. Although the farmers’ efforts have resulted in some restoration of stream flows, other attempts to invalidate the diversion holdover permits have been unsuccessful due at least in part to their ongoing contested case hearing, which has prevented a court from deciding their legal claims until the contested case is resolved.