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The battle over Maui’s water supply is taking center stage this week as two different government regulators consider a long-term lease for a significant amount of the island’s water.

The East Maui Water Authority and the state Board of Land and Natural Resources are expected to take up a proposed 30-year water license for up to 85 million gallons per day from the Koolau Forest Reserve, located in East Maui.

The voter-created water authority will discuss the matter on Wednesday while BLNR is scheduled to take it up as an agenda item on Friday.

Critics of the proposed deal are unhappy that the long-term lease seems to be intended for Alexander & Baldwin, Mahi Pono and East Maui Irrigation, all major private companies. Mahi Pono is owned by a Canadian pension fund. EMI is 50% owned by Alexander & Baldwin and 50% by Mahi Pono.

Giving these companies so much water undercuts the mission of the East Maui Water Authority, in the view of people like David Kimo Frankel, a land-use attorney who frequently represents clients in environmental and Hawaiian circles.

“The bidder will be EMI,” said Frankel. “It’s the only one who could possibly bid for this given the way it’s written.”

The head of Hawaii’s Department of Land and Natural Resources said that’s not the case.

“We’re not predetermining who the license will go to,” Dawn Chang said in a phone interview on Monday.

It could end up going to the East Maui Water Authority, the County of Maui, A&B, Mahi Pono, EMI or another bidder, the DLNR chief said. 

“We’re trying to make this a transparent, open process,” Chang said.

But critics see it as an attempt to sidestep the East Maui Water Authority, a county department that is finally getting up and running after being created by voters in 2022.

Sixty-four percent of voters in the November election that year said they wanted regional community water authorities created so the public, rather than private interests, could have a greater role in how water, a public trust resource, is allocated. The East Maui board is the first to be in place.

Gina Young is slated to begin her job as the first executive director of the water authority on Oct. 1. The longtime county planner and executive assistant to council member Shane Sinenci helped craft the charter amendment and has expertise in East Maui water issues.

“It’s extremely disappointing to see Gov. Green’s administration attempt to undermine the water authority by suddenly putting this on the agenda without adequate opportunity for community input,” said Shay Chan Hodges, former chair of the county’s Board of Water Supply.

Putting such a long-term and contentious item on the BLNR agenda one week before a new administrator takes charge and before other key matters are resolved makes the timing suspicious, according to Chan Hodges.

Jonathan Scheuer, who chairs the water authority’s governing board, said at the very least it’s premature.

An appraisal for the value of the 30-year license has yet to be completed, he said. And constitutionally mandated water reservations for Department of Hawaiian Home Lands parcels have not been determined. The Commission on Water Resource Management staff also have not yet updated how much water might be available from East Maui streams.

It’s unclear if East Maui watersheds can even provide 85 million gallons of water a day, Frankel said. He noted that the Commission on Water Resource Management 2022 that 45% of the time, only 44 million gallons per day can be taken out of East Maui. Thirty percent of the time, only 26 million gallons per day are available.

Those unknowns plus having the East Maui Water Authority poised to begin its work makes the timing of the proposed 30-year lease puzzling, Scheuer said.

But that shouldn’t be the case, Chang said.

Her department has been sued multiple times for issuing year-to-year revokable licenses and it’s time to set in place a long-term arrangement to end the litigation, she said.

Because a 30-year water lease involving tens of millions of gallons of water per day will undoubtedly be controversial, Chang’s staff has recommended that the state land board hold a contested case hearing on the matter.

That’s not typically how the process works. Normally the land board would issue a license and if people wanted to oppose it, they could request a contested case, a quasi-judicial forum to resolve disputes involving agency decisions.

“It’s inevitable that someone is going to ask for a contested case,” Chang said.

So the department figured it was best to go ahead and put one on the agenda for Friday’s meeting.

Chang was already scheduled to appear before the East Maui Water Authority, even before the notion of a 30-year lease surfaced last week, which took Scheuer and others by surprise.

In July, she and the other 10 members of the water authority asking a list of questions including how it planned to guarantee that existing water users won’t have their water supply affected once the new agency starts acquiring water licenses and begins taking over the water collection and delivery system currently owned and operated by EMI.

Chang asked the water authority to put together a plan to “demonstrate how the needs of current users who depend on the water for domestic, municipal and agricultural uses, will be met.”

The plan must also demonstrate that water “shall be used in an efficient, reasonable and beneficial manner, taking into consideration public trust purposes,” she wrote.

In its last meeting, water authority members said it’s ironic that the DLNR chief is asking a voter-approved body to justify its plans for protecting a public trust resource when for decades it has allowed A&B and more recently Mahi Pono to divert water from East Maui streams for private purposes.

They invited Chang to attend Wednesday’s meeting to discuss her questions, as well as those brought up by water authority members. With the proposed 30-year lease now looming in the background, Wednesday’s meeting and the one on Friday are likely to spark robust public testimony and staff discussion.

“People are going to bring up lots of concerns about the timing of this proposal,” Scheuer said.

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation.

Civil Beat’s coverage of environmental issues on Maui is supported by grants from the Center for Disaster Philanthropy and the Hawaii Wildfires Recovery Fund, the Knight Foundation and the Doris Duke Foundation.