Judge backs state in East Maui stream water case

An Oahu judge has taken the side of the state Board of Land and Natural Resources, Maui County, Alexander &Baldwin Inc. and East Maui Irrigation in a case brought by the Sierra Club of Hawaii regarding the diversion of water from streams in East Maui.

In a 46-page ruling issued Tuesday, 1st Circuit Judge Jeffrey P. Crabtree said the BLNR acted properly when it allowed the diversion of stream water in the renewal of two annual permits in 2018 and 2019.

Crabtree said Hawaii’s public-trust doctrine imposes a dual mandate on the state to both protect water resources and to make maximum reasonable beneficial use of those resources.

“This is a classic balancing,” Crabtree said in his ruling. “It was not unreasonable for the BLNR to balance these considerations as it did.”

During a three-week trial that began in August, the Sierra Club argued that BLNR’s decision to renew two annual holdover revocable permits and allow for the diversion of water from 13 East Maui steams violated its public-trust duties.

The permits, which in concept are temporary and expected to be replaced by long-term authorization, allow off-stream uses of water for agriculture, residential use, firefighting, dust suppression and commercial uses.

In his ruling, the judge noted that testimony during the trial underscored the fact that keeping lands in agriculture is in the public interest by providing jobs, food sustainability, food sources and a strengthened state and local economy, and that a dependable source of water is essential for that.

While the Sierra Club argued that the diversions are harming the wildlife and habitat of the streams, Crabtree noted that the evidence indicated the streams were not likely to suffer irreparable harm from the temporary impact of the two permits at issue.

The extensive environmental impact statement that will be required with a long-term lease of the water rights “will undoubtedly address impact on habitat” and other problems with the diversion infrastructure, Crabtree said.

“Given these realities, the court concludes the Board was reasonable in deciding it had sufficient information to make what everyone expected would be a short-term decision,” he wrote.

Sierra Club of Hawaii Director Marti Townsend said she was disappointed in the ruling, but she added that the group is not giving up.

“We will continue to advocate to protect the streams,” she said.

Townsend said it was clear it was a close call for the the judge, who acknowledged the problems with the East Maui diversions, including the fact that 100% of the water from the streams was being diverted 85% of the time.

She added that appealing the ruling is an option for the Sierra Club.

In a statement, DLNR Chairwoman Suzanne Case said, “Water is obviously fundamental to everyone. East Maui has a long and challenging past, but we’re dealing with the present and the future. The BLNR and (the Commission on Water Resource Management) have worked long and hard to meet their constitutional obligations and statutory mandates to protect our public trust resources and allow for sustainable use. Careful balancing is key.”