Staff proposes interim permits and tiered review to protect public‑trust uses as West Maui sustainable yield is reassessed

Deputy Director Kira Kamalhane presented a proposed process on April 28, 2025 for how the Commission on Water Resource Management might proceed with dozens of pending water‑use permit applications in the West Maui surface and groundwater management area. Staff proposed issuing interim permits for existing uses, using a phased, tiered review that would prioritize traditional and customary appurtenant (kuleana) rights and other constitutionally protected public‑trust purposes before addressing other existing and new commercial uses.

Kamalhane told the commission the proposed framework would allow the agency to move more quickly to regulate excessive uses while the longer technical work — including sustainable‑yield reevaluation and additional monitoring — proceeds. "I am proposing a potential framework to phase permits," she said, describing a four‑tier outline that would put appurtenant and traditional/customary uses first, municipal domestic needs and public‑trust restoration projects next, then other existing uses, and new uses last (with the handling of new housing flagged as a question to resolve).

Why it matters: Lahaina and adjacent West Maui aquifers have shown signs of stress in monitoring data, public testimony said, and many speakers urged the commission to act to prevent saltwater intrusion and further harm to streams, lo`i and marine nearshore ecosystems. The permitting backlog includes large utilities and private purveyors as well as many small community users, and witnesses repeatedly noted that private purveyors currently control a large share of the county’s groundwater allocation.

Details of the proposal: Staff outlined these elements: • Interim permits for existing uses: interim permits would be valid for a limited time, subject to renewal and to modification or reduction by the commission, and would allow the commission to regulate current pumping sooner than a full, final permit process while more data are collected. • Tiered prioritization: Tier 1 — appurtenant (kuleana) rights and traditional/customary practices; Tier 2 — municipal domestic uses and public‑trust restoration (and possibly watershed restoration); Tier 3 — other existing commercial uses; Tier 4 — new uses, with timing and conditions to be determined. • Alternatives analysis and monitoring: water‑use permits require an alternatives analysis (for example recycled‑water or R1 systems, conservation or desalination) and staff said interim permits would give the commission flexibility to integrate alternative supplies as they become available. • Timeline and process: staff proposed drafting an interim permitting framework in the spring and seeking targeted public comment in summer, then returning to the commission in the fall with a recommended approach and potential actions. Staff emphasized the potential for mediation where objections arise but acknowledged contested‑case hearings and judicial appeals are possible.

Sustainable yield review (C‑1): Planning branch staff member Neil Fujii described parallel technical work to reassess sustainable yields for Lahaina aquifer system areas. He explained the commission’s historical use of a "robust analytical model" (RAM) that is computationally simple but does not represent spatial heterogeneity, and discussed other options including an updated grama2 approach and full numerical groundwater modeling. Fujii said staff will consult hydrologists, groundwater‑dependent ecosystem experts and traditional/customary practitioners and that more monitoring and targeted modeling will be required before definitive changes to sustainable yields are made.

Public and legal response: Testimony at the meeting emphasized three recurrent points: (1) communities want the commission to protect traditional and domestic water uses first; (2) many residents say private purveyors and development currently control a disproportionate share of water (a number often cited in testimony was 77% private control); and (3) speakers urged the commission to use available tools — water shortage declarations, emergency orders, and renewed oversight of private purveyors — rather than letting new withdrawals proceed unchecked.

Legal alternatives suggested in testimony included HRS 174C‑62 (authority to declare a water shortage) and emergency orders under HRS provisions allowing the commission to apportion, rotate, limit or prohibit uses to address an emergency. Mahesh Cleveland, an attorney with Earthjustice, told the commission the statutory exemptions are narrow and warned that attempting to redefine new wells as "existing uses" by declaratory ruling would likely fail judicial review.

Commission discussion and next steps: Commissioners asked staff to gather clearer, public data on who is using water across systems, to scope the staffing and technical resources needed for permitting and modeling, and to prepare a public explanation of the tiering and interim‑permit process for targeted outreach. Staff said it will draft an interim permitting framework for public comment and continue the sustainable‑yield technical work.

Ending: The proposal drew both support and skepticism: some attendees called it a constructive path to rapid regulation; others warned mediation could delay outcomes and urged immediate action to regulate private purveyors. Staff and commissioners asked for further written input and technical collaboration from stakeholders and experts before returning to the commission for action.