NHLC response to HB 2501 on EMI water diversions

Alexander & Baldwin’s March 18 response to the Honolulu Star Advertiser editorial is an exercise in deception.

First, it is disingenuous for A&B to claim that other water permits are at risk. HB 2501 only addresses “holdover” authorization. A&B is the only entity in the state with a so-called “holdover” authorization of a revocable permit. While there may be nine other revocable water permits, all of those revocable permits are renewed annually. A&B, on the other hand, uses its unique “holdover” designation to avoid annual reviews and renewals. In addition, no one has raised any objection or challenge to the nine revocable water permits mentioned by A&B. Their water uses are not threatened. A&B is using them as an excuse to get the legislature to ratify its own illegal conduct.

Second, A&B ignores the special benefit it has received over the last 15 years as the only “holdover” in the state. A&B has used its special designation to exempt itself from annual BLNR review. By doing so, A&B has avoided ever having to prove that its diversions cause no harm – as required by law. As a “holdover”, A&B has been allowed to divert hundreds of millions of gallons of water every day for 15 years regardless of the consequences.

Third, A&B blames Hawaiian kalo farmers for “extending the process far longer than anyone envisioned.” Actually, BLNR, CWRM and A&B are to blame. Had they acted reasonably, followed the law and complied with court orders, the process would have been completed long ago.

  •  In 2003, BLNR illegally granted A&B’s May 2001 request for a thirty year lease. The circuit court reversed that decision because A&B and BLNR failed to prepare the legally required environmental assessment. More than a decade later, that environental assessment has not even begun. A&B’s (and BLNR’s) excuses for not starting the assessment are nonsense:
    • (1) A&B argues that they have not started work on an assessment because Hawaiian kalo farmers objected to A&B preparing the environmental disclosure document instead of BLNR. Of course they objected. A document prepared by A&B, the lease applicant, will be biased. But objections by kalo farmers have never stopped A&B before. Kalo farmers have objected to A&B’s diversions of streams for decades, for example, but A&B has continued to divert streams. Nothing prevented A&B from starting an EIS years ago — least of all kalo farmers. A&B has never paid them any heed or yielded to their wishes.
    • (2) A&B and BLNR argue that an assessment cannot begin until the Water
      Commission renders its instream flow standards. That makes no sense. An EIS considers a range of alternatives. Those alternatives include no diversions, existing diversions, and a range in between. Studying such options, including impacts, does not require a prior Water Commission decision.
  • East Maui kalo farmers petitioned to protect dozens of East Maui streams in 2001. The Water Commission sat on the petitions for years before taking any action. (Meredith Ching, vice president of A&B, sat on the Water Commission at that time.)
  • In 2010, the Water Commission refused to hold a contested case hearing on the instream water standards for 27 East Maui streams. Kalo farmers appealed. The Water Commission and A&B fought the kalo farmers every step of the way — delaying the proceedings for two more years to prevent farmers from presenting their case.
  • Fed up with the BLNR’s failure to do anything in the contested case hearing for years, kalo farmers filed a motion to reconvene the BLNR contested case hearing in 2012. A&B objected. And BLNR refused. In 2014, circuit court judge Rhonda Nishimura ordered the BLNR to reconvene the contested case hearing. Over a year later, the BLNR still has not reconvened the contested case hearing.
  • A&B has refused to take the time it has been given to measure how much water it diverts from each stream daily. How can the impact to any particular stream be determined if no one knows how much water is being diverted? A&B has also refused to participate in controlled releases to measure its diversions’ impacts.

Fourth, A&B persists in asserting that the current legal cases somehow jeopardize Maui County’s water supply. They do not. East Maui farmers are not attempting to stop the County’s legitimate use of water, and the court has ordered that the County’s water continue uninterrupted. The BLNR can exercise its existing authority to supply the County with its water needs.

Fifth, A&B claims that HB 2501 will somehow support the hundreds of revocable land permits held for non-water uses. HB 2501 has no effect on the more than 300 revocable permits issued pursuant to HRS § 171-55. It only amends HRS § 171-58, which relates to water (not land) permits. A&B is using a bogus threat to other revocable permit holders (and Maui County) to protect its own interest in using hundreds of millions of gallons of water daily.

Sixth, A&B claims that water “has been provided on all of the taro streams.” The fact is that A&B diverts water from streams required for taro cultivation — and those diversions continue to impair taro growth and taro farming. Providing some water is not the same thing as providing enough water. In addition, A&B continues to remove all the water from dozens of non-taro streams and tributaries, which are important for aquatic life that people eat.

Finally, A&B does not dispute that it in essence has been paying the State a quarter of a penny for 1,000 gallons of water, but charging the County six cents for that same amount of water. In other words, for every dollar that A&B pays the State, it charges the County $23. A&B points out that the County does not pay it $2 million annually. Nevertheless, it still charges the County twenty-three times what it pays the State.

HB 2501 is A&B’s attempt to get the legislature’s post hoc approval of A&B’s diversion of more than a hundred million gallons of water every day regardless of the impact to kalo farmers and fishermen.

Moses K.N. Haia III
Executive Director
David Kimo Frankel
Staff Attorne

1 thought on “NHLC response to HB 2501 on EMI water diversions”

  1. The article is enlighting. I had suspicions on what was happening was wrong. As of mid January 2016 the water flow in Waihe’e stream diminished by 3-6 inches. And has not returned to previous water level. A&B plan unknown/not transparent. Based on prior history not good for the community. I’m a part-time taro farmer in Waihe’e Valley with Kuleana water rights. Have been restoring ancient/authentic lo’i since 2003.I’m the family caretaker of the land currently.

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