On Wednesday, the Hawai‘i Supreme Court heard oral arguments in a case involving a June ruling by 1st Circuit Environmental Court Judge Jeffrey Crabtree to limit East Maui stream diversions to 31.5 million gallons per day from the previous 40.49 million gallons authorized by the Hawai‘i Board of Land and Natural Resources.
On Aug. 9, attorneys for the state Land Board and real estate investment company Alexander & Baldwin filed a petition with the state’s high court, claiming there was “not enough permitted water to battle the wildfires on Maui” and demanding justices overturn Crabtree’s decision.
In his June ruling, Crabtree ordered the state Land Board to uphold Sierra Club of Hawai‘i’s constitutional right to a contested case hearing over revocable permits the state issued to Alexander & Baldwin to divert East Maui streams through 2023.
To prevent the permits from being automatically revoked, which would have cut Maui County and central Maui agricultural operations from receiving any East Maui water, the judge maintained jurisdiction over the permits.
In doing so, he reduced the amount of water that could be diverted from East Maui by about 9 million gallons a day.
As was pointed out in written filings and Wednesday’s oral arguments:
- Water from East Maui, stored in Central Maui, would never have been used to fight the devastating wildfires in Lahaina.
- Millions of gallons of water from East Maui were and remain available in Central Maui reservoirs for firefighting and at least 2 million gallons of water continue to flow into them every day.
- Maui County can only realistically use a few hundred thousand gallons at most to fight a fire.
- The County only used 37,000 gallons of water throughout five days to fight the fires in Central Maui.
- Crabtree’s ruling had no impact on the County’s ability to fight fires (per Maui County’s corporation counsel).
Crabtree’s ruling authorized a request from the County for 7.5 million gallons per day, which included water needed for firefighting. The 31.5 million gallon per day cap was based on Alexander & Baldwin’s reported water uses, and would reduce the unnecessary waste of public trust water while the contested case hearing was pending.
As of Wednesday, a contested case hearing has yet to be scheduled.