“Worldwide, as temperatures rise and aquifers dry, investors are increasingly bullish on water, and buying vineyards, farms and ranches for what’s underneath or flowing through…”
They are coming for our water on Maui. Make no mistake about it. It’s not Wall Street, but Mahi Pono’s Canadian pension fund/California investor group who are on the prowl. They claim to be farmers, but are farming very little. Judging from current events, it looks like what Mahi Pono really wants to farm for profit is water – and lots of it.
Mahi Pono, via Alexander & Baldwin, has launched its hydro-quest with what is formally called “The Proposed Lease (Water Lease) for the Nahiku, Keanae, Honomanu and Huelo License Areas Draft Environmental Impact Statement” or, more simply, the “DEIS.” This staggering 2,700-page document was released on September 23 and theoretically is supposed to unfurl a blueprint for who, where, how, why, and what will be done with water-rich East Maui’s resource for years to come. If the EIS is approved, the state will ultimately grant a 30-year permanent water lease to A&B/Mahi Pono and Maui’s environment could be forever altered. It’s a critically important document that merits close study. That ain’t happening – but more on that later.
The DEIS was bought and paid for by A&B through the Honolulu-based engineering/EIS-getting specialists Wilson Okamoto Corporation, but the ultimate beneficiary will be Mahi Pono, a non-existent company until late last year that became Maui’s largest landowner in December 2018, after paying A&B $267 million for 41,000 acres of former Central Maui sugarcane land, and about 15,000 acres of land used by the East Maui Irrigation System. Mahi Pono paid half of EMI’s $5.4-million price tag earlier this year, and will pay for the rest and then completely own EMI after “long-term water leases from the state” are obtained, according to its Purchase and Sales Agreement with A&B. Since A&B would have to rebate Mahi Pono some $31 million in the event no lease is issued, you might say the former sugarcane grower is, ahem, motivated.
But in order to get such a lease, myriad state-mandated topics must first be addressed in a “draft” EIS. The public may file formal comments on the document until November 7 (see end of story for details). Only comments received by that deadline must – legally – be addressed by Wilson Okamoto/A&B/Mahi Pono before proceeding to the next rung on the lease-getting ladder.
Now, mind you, this DEIS is what water activists and environmental groups have been demanding for years – that our county’s biggest ag landowner jump through the necessary environmental/bureaucratic hoops if it wants Maui water. For almost 20 years, A&B skated by with endless temporary water permits that didn’t require any kind of documentation about the consequences of diverting copious amounts of water from East Maui streams.
However, the way A&B/Mahi Pono has gone about this process pretty much sucks. So what’s the problem? Well, there are a bunch of them.
First, did I mention that the draft EIS is 2,700 pages long? And that the public has only 45 days to comment on it? That’s a reading average of 60 pages a day, and we’re not talking about a John Grisham novel here – it’s a tough slog. Most people get as far as the 12-page “Executive Summary” which isn’t a bad start. But there are 11 chapters that address more than 100 different subjects, more than 50 maps, 33 tables, and 13 appendices. Trying to list a range of subjects is futile, because in following the state guidelines for preparing such a statement, an applicant must address everything: geography, history, culture, weather, politics and what have you, covering the past, present and future.
So, the first question asked after the monstrous document thudded into cyberspace was: May we have more time to comment?
Before that question is answered, here’s a larger problem: This DEIS process is not controlled by the state, it’s controlled by applicant A&B/Mahi Pono, through its preparer Wilson Okamoto. That’s like having a house you want to rent out – only the potential renter controls the terms of the lease as well as the entire lease process.
So Wilson Okamoto was the entity authorized to respond to the time extension request. Although there are precedents for granting extensions when the documents are exceedingly large, its answer was a resounding “No.”
And, while we’re at it, here’s another question: What is A&B still doing in the middle of this process? It’s already spent the $267 million it made on the land deal, but you know how the rich are with money – they hate to part with it – and there’s the matter of the potential $31 million no-lease rebate. Initially, A&B stayed in the background while Mahi Pono’s senior vice president of operations Shan Tsutsui fiercely lobbied at the State Legislature last spring to obtain more temporary water permits. He pretty much cocked that up, as HB 1326 – the bill providing those revocable permits – died in the state Senate.
Apparently A&B has commandeered this process to make sure it’s done right this time, which makes it hard to tell who’s really driving this bus – or whether A&B might have its own future plans for the water it is helping Mahi Pono obtain. Even State Senator Kai Kahele, who opposed HB1326 in his Senate committee, commented during a recent interview: “A&B’s on the lease application, A&B’s the one that contracted and paid for the EIS. At some point Mahi Pono needs to get out of the passenger seat and take over the long-term lease per their water and farming plan in Central Maui.”
2,700 Page Beast
So back to the draft EIS… did I mention it’s 2,700 pages long? In a conscientious and valiant effort to make sense of this unwieldly beast, East Maui County Councilmember Shane Sinenci took up the matter in his Environmental, Agricultural, and Cultural Preservation Committee in early October. He invited the EIS principals, as well as Maui community “resources,” to comment on the DEIS “to see if it contains all the information needed for policy makers to make an educated decision.”
It’s a good question and it remains unanswered. Here’s what happened: First, only committee members Kelly King, Tamara Paltin and Mike Molina even bothered to show up for the meeting, barely making a quorum. Committee Vice Chair Tasha Kama showed up five minutes before the two-plus hour hearing ended and committee members Yuki Lei Sigamura and Alice Lee never came at all, then spent the next full council meeting (see last week’s story) taking bogus pot shots at those who did attend.
Also “not able to attend” was anyone from Mahi Pono, a representative from the DEIS preparer Wilson Okamoto, or county water director Jeff Pearson, who sent underling Eva Blumenstein in his stead. Blumenstein listed some comments her department had given A&B during its “pre-EIS prep” in 2016, then acknowledged that a lot of those comments weren’t pertinent anymore and finished by admitting that she had no idea whether the comments had even been answered in the current DEIS.
Since then the Water Department has reviewed the DEIS and sent a draft of director Jeff Pearson’s comments to the Board of Water Supply for its meeting next week. The department had pointed questions, among them the need to consider the possible impact if Mahi Pono fails to “sustain the economic viability” of EMI.
Community activist Lucienne de Naie and Maui Tomorrow executive director Albert Perez did show up at Sinenci’s hearing, along with Board of Water Supply chair Shay Chan Hodges and board member Norman Franco, all of whom offered concerns about the DEIS.
Chan Hodges and Franco were particularly taken aback by the EIS’s quick dismissal of a potential purchase of EMI by the county or another public entity because it could “intensify adverse environmental effects” and was “speculative and unreasonable.” The two were members of a Water Board subcommittee that just completed an 80-plus page document that intelligently explores that very option without any adverse environmental effects that I could see. (Pearson’s comment letter also objected to the brusque dismissal of the idea: “In the event the EMI/Mahi Pono system is not economically viable, ‘at risk,’ or compromised” the final EIS “could address an alternative operations model.”)
Lucienne de Naie probably knows more about Maui water issues than anyone else on the island. She has extensively researched the subject and for almost 25 years has actively advocated on behalf of the Sierra Club and other island associations for an environmentally sound water policy. Albert Perez isn’t far behind; the co-founder and current executive director of Maui Tomorrow has been involved in Maui’s land and water issues for years. I doubt there are any two people on island more informed about water issues and the state’s water permitting process.
And they both acknowledged during that hearing and at a meeting this week of the Alliance of Community Association of that they hadn’t been able to hack their way through the whole document either. Not in 45 days.
But they’d read enough to be deeply skeptical about the document’s size (de Naie: “There’s no reason this document had to be so big; it’s very redundant”) and its contents, which carry the same macho, paternalistic attitude A&B took with everyone else on Maui for years and which Mahi Pono seems to be doing its best to emulate. Some examples: The document asserts that East Maui water needs to be taken, since there is nowhere else on Maui where crops can grow as well as Central Maui, which has never produced a crop other than sugarcane.
It stated that if EMI did not get a lease, that Upcountry Maui would get no water, an outright falsehood and probably illegal as well, as the county always will get water before a commercial entity like Mahi Pono.
The DEIS also asserted that a 30-year lease to divert water from 33,000 East Maui acres would have absolutely no effect on natural or cultural resources, cultural practices, habitat of rare and endangered species, or the social welfare of the community.
“I just don’t think those assumptions are true,” said de Naie.
As proof for one of those assertions, she added, a flora and fauna survey was conducted over the entire 33,000 acres. According to the DEIS, it took just four days.
However, de Naie and Perez’s main concern revolves around stream diversions, which would take several articles of this size to explain in detail. Basically, except for 12 or 13 streams, there are no set water standards for most of the East Maui streams that would be diverted by EMI – and there are lots of them. So there is no way to quantify an “appropriate” amount of water to divert without hurting ecosystems, which A&B impaired greatly during its long sugarcane reign.
“The draft EIS assumes that the heavily diverted state during the sugarcane era is the baseline, and concludes that diverting less water than that will have no impact,” said Perez.
Also, Perez and de Naie wondered in separate interviews why the applicants were allowed to prepare the DEIS. Does the Board of Land and Natural Resources, which controls the lease process, really believe that A&B/Mahi Pono would honestly address state-mandated subjects such as “Potential for Environmental Accidents,” “Unavoidable Impacts,” “Long-term Risks to Health and Safety,” and “Tradeoffs Among Short- and Long-Term Gains and Losses”? I’d be skeptical after that four-day, 33,000-acre flora and fauna survey.
The fox is in charge of the henhouse here, and any outcome is poisoned as a result (Fox: “How many hens in the henhouse? Uhhh, none to my knowledge…”).
Alternative Lease Process
There is a legal alternative, according to Perez and de Naie: The BLNR – which will ultimately decide on the lease – could prepare the draft EIS, which would most certainly be a more objectively researched document if done by the state. If the BLNR formulated the DEIS, said Perez, “Then the state could have a true public auction and choose between bid proposals. Knowing this, each bidder would want to put together the best proposal possible in order to increase its chances of winning the auction. This would increase the benefits to the state and the citizens of Hawai‘i of issuing the lease.”
That is, if the state is even slightly interested in upholding its constitutional mandate, which defines water as a public trust and orders the government to “protect, control and regulate the use of Hawai‘i’s water resources for the benefit of its people.”
And as for Mahi Pono’s constant PR refrain that it is dedicated to being a steward of the land and provider of food security? Well, California water attorney Tim O’Laughlin was hired by Mahi Pono October 1 as its new chief operating officer. Mahi Pono was trying to sit on that story (probably until after the DEIS due date), but news has a way of squeezing out.
O’Laughlin’s specialty? According to central California environmental attorney Richard Harriman, who is very familiar with O’Laughlin’s legal resume: He’s a go-to guy for privatizing public water.
“What you’re seeing over there in Hawai‘i is what’s happening on the mainland, which is the monetization of public resources and the privatization of them,” said Harriman. “The public resources are being acquired at wholesale by private enterprises in order to sell them at retail and profit off of it.”
They are coming for our water.
AHA Moku and Maui Tomorrow will hold a DEIS info meeting at the Haiku School Friday, Nov. 1 from 5-7pm.
A statutory 45-day public review on the proposed 30-year water lease in East Maui areas is now open and will continue through Nov. 7, 2019. Comments should be sent to the approving agency (Board of Land and Natural Resources, State of Hawaii, Mr. Ian Hirokawa, ian.c.hirokawa@
Image 1 courtesy Flickr/wscullin
Image 2 courtesy The Valley Citizen2019-10-17TIGReport