Water rights bill brings out opponents

Honolulu Star Advertiser - March 22, 2016
Kevin Dayton

Opponents turned out in force Monday to testify against 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.

At the start of the hearing by the Senate Water, Land and Agriculture Committee, Chairman Mike Gabbard announced that 577 pieces of testimony had been submitted on House Bill 2501.

The measure appeared in large part to pit environmental and Native Hawaiian groups who want flows restored to a dozen Maui streams against farmers and ranchers who worry a recent court ruling against A&B could threaten their access to water and public lands.

Summer Sylva, staff attorney for Native Hawaiian Legal Corp., said A&B is the only entity that would benefit from House Bill 2501 because A&B is the only company with water rights on “holdover” status that are addressed in the bill. Although there might be nine other revocable water permits, “nobody has objected to their use,” she said.

She alleged that “A&B has thumbed its nose at state laws and is now inciting unfounded fears” among people who hold revocable state permits as a way to build support for House Bill 2501 that protects the company’s interests.

Christopher Benjamin, president and CEO of A&B, told lawmakers the bill is needed because the recent court decision “abruptly rendered a number of water permits invalid” and clouded the status of more than 300 land permits issued by the state Department of Land and Natural Resources.

He added that 36,000 Upcountry Maui residents and businesses also rely on A&B to deliver water to Maui County for their needs.

“Many have said that the legislation helps only A&B,” he said. “This isn’t true.”

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 are resolved.

East Maui farmers have been contesting A&B’s permits since 2001, arguing that the diversions are harming kalo, or taro, farming and water ecosystems. The taro farmers are asking that stream flows be partially restored to 12 streams.

On Jan. 8 Circuit Judge Rhonda Nishimura ruled that A&B’s four revocable permits were invalid.

BLNR had been extending the permits on a “holdover basis” for more than a dozen years, and 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 legislative intent.”

Maui County is appealing Nishimura’s ruling with the support of A&B and the Land Board.

A&B then went to the Legislature to press for the bill 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.

Kekoa Kaluhiwa, first deputy director of the state Department of Land and Natural Resources, said in written testimony that it could take years for an applicant for a water lease to meet the requirements for a lease.

“Accordingly, it is understandable that an applicant for a water lease would want to continue water use under a revocable permit in the interim,” Kaluhiwa said. “In many cases, the water uses have existed for many years or decades, and so an interruption of the water supply under a permit could have serious impacts on residents, schools, hospitals, businesses and agricultural communities that rely on the water.”

The bill would allow the BLNR to maintain the status quo while addressing the lease application, Kaluhiwa said.

Scott Enright, chairman of the state Board of Agriculture, said farmers and ranchers across the state rely on water sources that are covered by revocable permits. Enright said the department strongly supports HB 2501 because “without a continued water source, there may be significant economic and social impacts on Hawaii’s agricultural community.”

The bill is opposed by the state Office of Hawaiian Affairs, which argued Maui taro farmers “have long sought the modest return of water to just 27 of 100-plus East Maui streams.”

Hawaii law recognizes water as a public trust resource, but for more than a century Hawaii’s large plantation interests made exclusive claim to substantial amounts of water for their own private profit, according to the OHA testimony. Monopolizing the water in that way “continuously deprived farmers, cultural practitioners and native species alike of the water resources they depend upon,” according to OHA.

The bill was also opposed by the Hawaii Green Party, the Hawaii Wildlife Fund and others, and was supported by the Hawaii Farm Bureau and the Chamber of Commerce of Hawaii.