Today, Earthjustice filed a lawsuit on behalf of Maui community groups Hui o Na Wai 'Eha and Maui Tomorrow Foundation challenging plans by Alexander & Baldwin, Inc. (A&B), Hawai'i's largest shipping and real estate company, to build a water treatment plant on Maui. The treatment plant would take contested stream flows from several Na Wai 'Eha streams, "the Four Great Waters" of Waihe'e River and Waiehu, 'Ïao, and Waikapü Streams on Maui, so that A&B can supply the treated water to its development projects and also sell it to Maui County.
The proposal would redirect nine million gallons per day of diverted stream flows that A&B has claimed is essential for its Maui Hawaiian Commercial & Sugar (HC&S) plantation and instead use it for A&B's land and water development plans. The lawsuit, filed in Hawai'i state court on Maui, seeks to invalidate the environmental impact statement (EIS) for A&B's proposed "Wai'ale Treatment Facility" for failing to examine any impacts on Na Wai 'Eha streams and aquifers, explore available alternatives to the project, or disclose any information on the proposed water deal with the county.
"Even as A&B threatens to shut down its Maui plantation if its diversions are scaled back, it's rushing ahead with big plans in the water business," explained John Duey, President of Hui o Na Wai 'Eha. "Our water resources are a public trust, not A&B's property and profit source, and the EIS must examine all aspects of this proposal in full public view."
Currently, two private companies drain Na Wai 'Eha streams dry: the HC&S plantation and Wailuku Water Company (WWC). WWC is a remnant of the former Wailuku Sugar plantation that sold off all its farmlands and reformed as a water company selling diverted stream water to the public for private profit. According to public information revealed by A&B, its Wai'ale proposal would involve a deal between A&B, WWC, and Maui County under which A&B would construct the plant and dedicate it to the county, but reserve a portion of the treated water for A&B development projects on HC&S plantation lands and, together with WWC, sell the remaining water to the county.
"A&B shows its true colors with this project -- how it's all about profiting off our public trust resources," said Irene Bowie, Executive Director of Maui Tomorrow. "The EIS adds insult to injury by refusing to address the glaring problems with this proposal."
As the legal complaint filed today explains, the EIS avoids discussing any impacts of the proposed project on Na Wai 'Eha water resources such as streams, springs, wetlands, nearshore waters, and drinking water aquifers, by declaring that "[t]here are no streams or wetlands in the immediate vicinity of the WTF project site." The EIS likewise lacks any meaningful analysis of alternatives, eliminating all other alternatives by simply insisting on the need for this project. Finally, the EIS avoids any mention or details of the water deal between A&B, WWC, and the county.
"The Wai'ale proposal is a devil's bargain that would leave the public paying the bill in more ways than one, while the companies reap the benefits," said Earthjustice attorney Isaac Moriwake. "The plant may very well be economically unviable compared to other alternatives, yet the EIS contains no discussion of any of this. It's not surprising that A&B wants to sweep all these issues under the rug, but the law doesn't allow such dirty secrets."
The lawsuit expands ongoing legal efforts to return flows to Na Wai 'Eha streams in order to restore the health of the stream ecosystem, recharge drinking water aquifers, and support traditional Hawaiian uses such as taro farming. This battle has unfolded before the state Water Commission since 2004.
The Commission recently released a decision on Na Wai 'Eha allocations that favored HC&S by returning less than a fifth of the total flow of about 70 million gallons per day to Waihe'e River and Waiehu Stream and no water at all to 'Ïao and Waikapü streams, which leaves them drained dry below the diversions.
The June 10 decision reversed an April 2009 recommendation that called for returning a total of 34.5 million gallons per day to the four Na Wai 'Eha streams. Commissioner Lawrence Miike made the recommendation after presiding over years of proceedings. Miike issued a scathing dissent to the June 10 decision in which he criticized the preferential treatment shown to HC&S and concluded that the Commission "has failed in its duties under the Constitution and the State Water Code as trustee of the states public water resources."
"The Wai'ale proposal sums up what's at stake in this case: whether Hawai'i's water resources are the property of companies like A&B, or a public trust and legacy for future generations," said Moriwake. "Our challenge against this shoddy EIS is yet another fight to ensure the rule of law prevails over plantation water politics."