By Edwin Tanji

HONOLULU (The Maui News, Sept. 18) — A state Circuit Court judge has ruled that the state Board of Land and Natural Resources must consider rights of East Maui taro growers and impacts on stream life before it grants long-term leases to divert water from the area. 

In an order issued late Wednesday on an appeal by East Maui farmers, Judge Eden E. Hifo said the land board cannot immediately grant water leases sought by Alexander & Baldwin and its East Maui Irrigation Co. subsidiary. 

A spokeswoman for A&B said Wednesday night no one familiar with the ruling was available to comment on the impact of the decision. Officials of the Board of Land and Natural Resources also were not available Wednesday night. 

The Native Hawaiian Legal Corp., which represents a Keanae taro-farming hui in the case, announced it would hold a press conference on the decision today in Honolulu. 

In its announcement, the NHLC said the "biggest water diversion monopoly in the state may be ending as taro farmers triumph over sugar company." 

Wailuku attorney Isaac Hall, who represented Maui Tomorrow in the proceedings in Hifo’s court, said all of the clients appealing the land board’s decision to grant the water leases are pleased with the judge’s decision. 

"We’re very happy the issues that we are raising will now have to be addressed," he said. 

The dispute involves an application from A&B for 30-year leases to allow the company to continue to draw water from the East Maui watershed from Nahiku to Haiku. 

The East Maui Irrigation Co., and Maui Land & Pineapple Co. divert water from the streams flowing out of the watershed through a system of four major ditches to provide irrigation water for pineapple and sugar cane fields across East Maui and the Central Maui isthmus. 

The East Maui Irrigation system had been developed more than a century ago by the founders of Alexander & Baldwin through leases initially granted by King Kalakaua in 1878 when the company began developing sugar cane as a commercial crop. Water leases to allow the company to continue to draw from the watershed were continued up to the early 1980s, when a protest by taro farmers blocked the long-term leases. 

Over the past 40 years, taro growers have returned to farms in the Wailuanui-Keanae region hoping to restore the taro-growing industry that once thrived in the East Maui wetlands. They began objecting to the continued diversion of water from streams that provide for their taro loi. 

While the issues were under review, the land board over the past 20 years has been issuing annual revocable permits to A&B and EMI, allowing the companies to continue to draw water that also supplies Upcountry consumers and farmers. 

When A&B and EMI applied for 30-year leases, the board ordered a contested-case hearing that ended two years ago with a decision in favor of the leases. 

Hifo’s ruling Wednesday was on an appeal of the land board’s decision to allow long-term leases. 

In reversing the land board’s decision, based on findings by hearings officer E. John McConnell, Hifo said the land board must at a minimum have an environmental assessment prepared on the impact of diverting water from East Maui streams. If an environmental assessment finds possible impacts, an environmental impact statement would be required. 

Hifo’s oral ruling also requires the board to consider the issues of riparian and appurtenant rights of downstream landowners — those who have rights to use the water from a stream — as well as impacts on in-stream life, Hall said. 

The land board had found that the state Commission on Water Resource Management could be responsible for determining whether there were impacts on riparian rights and on in-stream life after the leases are issued. 

"She said that made no sense and said the board could not issue a long-term lease without the Water Resources Commission first determining what needed to be done to provide for riparian rights and in-stream use," Hall said. "And if the board did not want to wait for the Water Resources Commission to decide, the board had to decide before it can issue any long-term leases. 

"She said it’s because there is a provision in the statutes that the state can’t issue a lease unless it has made a determination that it is in the best interests of the state. She said she can’t see how the state can determine what are its best interests until all of these issues are determined," Hall said. 

Any future decision on water leases out of East Maui has implications not only for the sugar and pineapple plantations, but for the entire Upcountry water system. Maui County now draws up to 7 million gallons a day from EMI’s Wailoa Ditch, which is 60 to 90 percent of the water used by residents and farmers from Makawao to Kanaio.

Maui County had joined EMI and A&B in the appeal filed by Na Moku Aupuni O Koolau Hui, several independent taro growers from Keanae, Huelo and Honopou, and by Maui Tomorrow.

September 19, 2003

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