A bill that would allow Alexander &Baldwin to temporarily hold on to the rights to millions of gallons of water it diverts each day from East Maui streams survived a close vote in a key Senate committee Monday night.
After a six-hour hearing on House Bill 2501, Senate Water, Land and Agriculture Chairman Mike Gabbard amended the measure to limit the extension of A&B’s water rights under the the bill to no more than three years.
The measure was approved by the committee in a 6-3 vote, with several senators who voted for the bill noting they have strong doubts about the measure. Those concerns might signal problems for the bill when it is taken up by the Senate Ways and Means Committee.
Gabbard said in an interview Tuesday he is concerned about the differing interpretations of a recent court ruling on A&B’s water permits, and wanted to keep the bill alive to allow more time to sort through the issue.
“It was a tough one because both sides of the issue gave very strong arguments,” Gabbard said. He said the concerns raised by Native Hawaiians, Maui taro farmers and environmental groups “need to be addressed, need to be a part of the solution for water rights on Maui and across the state.”
East Maui farmers have been contesting A&B’s permits since 2001, arguing the diversions are harming water ecosystems and preventing them from farming taro. The farmers are asking that flows be partially restored to 12 streams.
A&B has been allowed for more than a decade to use or divert water from dozens of streams pending a final decision by the Board of Land and Natural Resources on the company’s application for a long-term lease of the water. The Land Board has allowed A&B to continue diverting water under four revocable permits that are supposed to be temporary while legal challenges to the water requests are resolved.
BLNR had been extending the permits on a “holdover basis” for 13 years, and on Jan. 8 Circuit Judge Rhonda Nishimura ruled that A&B’s four revocable permits were invalid.
Nishimura said in her ruling that allowing holdover tenants to “occupy public lands almost in perpetuity for continuous, multiple one-year periods” is inconsistent with the public interest and lawmakers’ intent.
Maui County is appealing Nishimura’s ruling with the support of A&B and the Land Board. In the meantime A&B has asked the Legislature to pass HB 2501 to allow the company to hold on to its water rights while the Land Board makes a determination on its long-term water lease. A&B has been seeking such a lease for the past 16 years.
Nearly 600 pieces of testimony were submitted on the bill before Monday’s hearing. Environmental and Native Hawaiian groups argued for restoration of flows to the Maui streams, while farmers and ranchers raised concerns that the ruling could threaten their access to water and public lands.
Gabbard (D, Kapolei- Makakilo) said BLNR needs more time to resolve the issue of revocable permits, and has a task force working on the problem. He said it is still unclear to him whether the ruling affects only A&B’s permits or whether it might affect other farmers and ranchers. “I’m still not convinced either way, to tell you the truth,” he said.
Sen. Russell Ruderman, who voted against the bill, said in an interview Tuesday the measure “only benefits one company who has taken advantage of their situation for a very long time.”
A&B engaged in “fear mongering” to convince other farmers and ranchers that Nishimura’s ruling might also affect them, Ruderman said, adding that he obtained an opinion from the state attorney general saying the court ruling applies only to A&B.
Five of the nine state revocable water permits are in Ruderman’s district, “and I care about those guys a lot and I work closely with them,” he said. “I’m clear in my belief that the court ruling does not apply to them, and they’re not in jeopardy of losing their revocable permit.”
Ruderman (D, Puna) said lawmakers ought not to reward a “bad actor” that diverted water for 100 years and allowed streams to run dry. “They don’t need this water, and if they do need it, they can pay a fair market value,” he said.
Christopher Benjamin, president and CEO of A&B, told lawmakers Monday the bill is needed because the Nishimura ruling abruptly rendered a number of the company’s water permits invalid and clouded the status of more than 300 land permits issued by the state Department of Land and Natural Resources.
“At risk is the water currently relied upon by 36,000 Upcountry Maui residents and farmers, and by HC&S (Hawaiian Commercial &Sugar Co.) to complete its last crop of sugar and transition to a diversified agriculture model so as to keep the central valley of Maui in cultivated open space,” Benjamin testified.