HB2501, as indicated by the Conference Committee report is meant to “to allow the Board of Land and Natural Resources to authorize the holder over of a previously authorized water rights lease during the pendency of an application to renew the lease.” The situation which the bill seeks to remedy exists in only one instance, which the O‘ahu First Circuit Court addressed in its ruling earlier this year. In fact, even the Deputy Attorney General arguing the case said, “This is a unique situation.”
The Conference Committee, in an attempt to lend further reasoning in support of the bill, raised, in its report, the specter of losing Important Agricultural Lands (IAL) to reclassification should a minimum of 3,500 gallons per acre per day (GAD) not be readily available and the bill fail to become law. While the However, before any of the 27,000 IAL acres might be reclassified, there would certainly be contested case hearings to determine the validity of such a petition. What’s more, the Waiahole Decision set the minimum GAD for diversified agriculture at a minimum of 2,500 GAD, or an average of 3,500 GAD, set by the Department of Agriculture. So, while the Conference Committee attempts in its report to scare the bejesus out of anyone who cares about the lost of IAL, their claim only helps to make transparent their real intent of giving Alexander and Baldwin (A&B) pretty much whatever they want.
What’s more, way back in 2000, A&B filed an application for a 30-year long-term lease to access 33,000 acres of public land for the purpose of diverting an unspecified amount of water from public lands. A year later, with approval still pending from the Board of Land and Natural Resources (BLNR), taro farmers on Maui filed for a contested case hearing on A&B’s long-term lease application. In June, 2003 BLNR finally approved the long-term lease application, at which point the taro farmers appealed the decision to the courts, as no Environmental Impact Statement was completed, as required by HRS 343.
Had A&B and BLNR followed the law more than a decade ago, we might not be talking about this right now.
Still, despite panic raised by A&B and DLNR that other revocable permit holders could find themselves in a similar predicament, there’s no evidence or reason to believe that would actually happen. The ongoing struggle and litigation against A&B is a unique situation where they are diverting large amounts of water, for arguably unknown reasons, and in the process harming farmers downstream. DLNR admits no other litigation is pending other than the ongoing cause against A&B. It’s also important to point out that there are other remedies that could address this issue, without this legislation:
- Seeking a stay of enforcement from the court while the decision is on appeal,
- BLNR could issue a new very limited revokable permit to A&B (such as only for upcountry residents and with specific GAD figures for diversified agriculture with directions to complete an Environmental Impact Statement for those uses (which DLNR had previously directed A&B to do), possibly to include water diversion until Dec. 2016,
- DLNR contacts all other revokable permit holders to outline the future implementation so that they have certainty about what to expect,
- DLNR sets regulations to address the concerns of transparency, public trust resources, and the needs of the other revokable permit holders, such as the Ka‘u ranchers, for example,
- Separately, the Water Commission could immediately set interim in-stream flow standards for East Maui streams that are in place while the larger decision about the future of agriculture in central Maui is decided.
It’s also important to note that, even without a revokable permit, or this bill, A&B can still divert significant amounts of water from watersheds it owns: as much as 55 million gallons a day. It also has access to well water that can pump more than 83 million gallons a day.
Additionally, the public display over A&B’s announcement in April to restore flows was arguably disingenuous. In 2008, BLNR ruled that 12 million gallons per day of water should be restored among 8 streams in East Maui. Despite this order, A&B released minimal amounts of water to these streams, until their announcement in April. The public “stunt,” lent further credibility by the legislators on hand for the press conference, should serve as a reminder that A&B consistently flaunts the law, until it serves their purposes not to.
Ultimately, the situation which A&B and DLNR say this bill will address, is a result of a combination of foot dragging by the DLNR and A&B’s refusal to play by the same rules as everyone else. Had DLNR (or A&B) completed an Environmental Assessment or Impact Statement in conjunction with their initial 30-year lease application in 2003, this situation might not exist at all.
Despite all this, Governor Ige chose to sign the bill. He said, “We have a water permit process that has not been working.” This is fundamentally untrue and incorrect. Permit process WORKS for everyone except A&B, who DLNR has been giving everything they ask for… for decades, in clear and repeated violation of the law. Governor Ige goes on, “While I have major reservations about HB2501, it does provide time to transition to a press that ensures water is distributed fairly in accordance with the public trust doctrine and that decisions are made in a timely matter.”
Unfortunately, flawed reasoning and a willingness to be swept up in fears of who else might be affected, he signed the bill. While disappointing and frustrating, opponents of the bill should draw the conclusion that the Governor is just another corrupt politician, bought off by powerful and moneyed interests. Certainly there are criticisms that can be laid on the Governor, but there isn’t any evidence that he’s corrupt. Rather Ige, earned whatever political chops he may have over decades working with many politicians who ARE corrupt and in a system that is corrupt.
A&B didn’t need to sell the legislature a bill of goods about how others might be negatively affected by a failure to pass HB2501, they would have gone along willingly. The Governor, on the other hand, inevitably listened to those for whom A&B’s fear tactics were effective. Rather than risk hurting farmers, HELCO, and KIUC, Governor chose to sign the bill. He should definitely be made to feel our frustration and disappointment, but he should not be painted with the same brush as those legislators who stood shoulder to shoulder with A&B executives at the April press conference.